Lord Archer of Sandwell: My Lords, I offer my warm congratulations, and not just conventionally, to the noble Lord, Lord Lester, not only on presenting this Bill but on initiating this debate. I am happy to declare myself a supporter of the Bill, although I hope that that will not be taken as committing me to every word in the draft.
	The noble Lord has deployed the case for the Bill with his usual care and skill, and nothing would be gained by my seeking to improve on his presentation. So I hope your Lordships will forgive me if I devote the time available to anticipating some of the difficulties which may be urged and exploring some of the challenges which may await us. Indeed, one of the benefits which the noble Lord has conferred on us is the opportunity to consider some of the issues which arise. In the interests of brevity, I propose to confine my remarks to armed conflict and peacekeeping operations.
	Constitutional reform rarely presents itself spontaneously to the mind. I am aware that the noble Lord has been urging some of these reforms for a very long time. I think it was the tragic saga still unfolding in Iraq which has evoked so much debate inside and outside Parliament. The fourth report of the House of Commons Parliamentary Administration Committee, to which the noble Lord referred, is an example. I am particularly indebted to the directors of three NGOs—the One World Trust, the Federal Trust for Education and Research and the Democratic Audit at the University of Essex—for the thoughtful report they have published under the title Not in my Name. I should declare an interest as president of the One World Trust.
	Given all that, it would be a sad reflection if, while these questions were being discussed outside Parliament, there was no discussion in the Chambers of the two Houses, hence my gratitude to the noble Lord, Lord Lester.
	First, the pressures on our time ensure that none of us can be well informed across the whole spectrum of human knowledge. For Members of the other place, the greater part of lobbying from their constituents is related to matters nearer home; there are rarely many votes to be earned by time spent on international relations. In your Lordships' House, our greatest contribution is normally cited as the scrutiny of texts, and international affairs do not present so many occasions for that as do domestic affairs. I hope that the Bill may help to redress that in due course if we are charged with the scrutiny of treaties.
	Parliament has not acquired a reputation for harassing governments about their foreign policy. I have been re-reading the series of very entertaining lectures by A J P Taylor entitled, The Trouble Makers. For me, two lessons emerged. First, for much of our history over the past 300 years, governments have considered themselves better qualified than the parliamentary Benches to conduct foreign affairs because they were the shamans and the priests who carried within their breasts the accumulated wisdom of the Foreign Office. Like shamans everywhere, they tried to ensure that that wisdom should not be widely disseminated.
	Of course, international diplomacy consists largely in not letting others know all that is in your mind, so there was a ready-made reason for not sharing their plans with Parliament. At best, Parliament discovered what had transpired when the process was complete. I appreciate that that is sometimes inevitable, but it does not facilitate parliamentary control nor, indeed, widespread understanding of the Government's problems and how they propose to address them. The Government might actually benefit if we were better informed.
	The second lesson is that the accepted wisdom of the establishment is not always endorsed by the outcome of their policies. What the dissenters are saying now becomes the accepted wisdom of the future. If I may put it in the words of A J P Taylor:
	"Today's realism will appear tomorrow as shortsighted blundering. Today's idealism is the realism of the future".
	We sometimes need to make the best hand we can at learning as we go along. But first there must be a need to relax the culture of secrecy. Perhaps the Government's first task is to assist parliamentarians with the information we will require for our new mandate. I hope that the good will of the Government will be in evidence.
	At best, it is not easy to provide up-to-date information about an ongoing and fluid situation, but that does not provide governments with an exemption from trying. The intelligence on which Ministers and diplomats act cannot always be disclosed. They must respect the need to conceal the sources. The Government are to be congratulated on the publication of the dossier of September 2002. That was the first occasion on which a government had made public a report by the Joint Intelligence Committee. I do not believe that there was a deliberate intention to mislead, though the report may not have been published had it not been thought to lend support to the Government's case.
	Normally, reports of the JIC were intended to be read by people who were accustomed to reading intelligence reports. They would have appreciated that intelligence, by its very nature, is tentative and incomplete. They would have understood that weapons of mass destruction vary substantially in kind, size and effect. The Government must now have learned that what is informative for one readership may be misleading for another.
	We are at the beginning of what may transpire to be an extended learning curve. Furthermore, if the requirement for parliamentary authority is to bite, Parliament may need to break through the deference which it has traditionally shown to those who conduct our international relations. "If you knew what I knew" is an insidious syndrome. I fear that the Bill will encounter the criticism that, even had it been on the statute book at the outset of the Iraq crisis, it would not have prevented the Government pursuing the course on which they were determined. Parliamentary authority would have been forthcoming. There were debates in another place on 26 February and 18 March 2003. There were some persuasive dissidents, but, on each occasion, the Government were accorded a substantial majority for their policy. In corresponding debates in your Lordships' House, serious concerns were expressed, but there were no Divisions. It is clear—and I speak as a dissident—that had the Government required a formal endorsement, it would have been forthcoming. Growing into a new responsibility and flexing one's muscles on appropriate occasions is usually a gradual process.
	I have one further concern. The burden of all the discussion consequent on the invasion of Iraq has been the idea that the function of Parliament is to act as a brake on precipitate action. Sometimes what may be needed is not a brake but an accelerator. During the Rwandan genocide, the politicians and the diplomats considered and discussed; many delegates to the Security Council awaited instructions from their governments; national governments pondered the risks; and when the council called for the deployment of armed forces, some states waited to see what other states would do. Meanwhile, the civilian population suffered casualties at the rate of three times the number of casualties sustained in New York on 11 September 2001 and suffered them every day for 100 days. It will not be easy to draft legislation which would enable Parliament to stimulate a government into action, but there may be procedural reforms which could help avert another Rwanda.
	None of this is an argument against the Bill; indeed, it is an argument for proceeding to a Committee stage. The United States appears to find the equivalent provision in its own constitution a practical and valuable requirement. If the Bill is awarded a Second Reading, the Committee stage promises to be an interesting experience. I would like to read the political commentaries 10 years from now.

Baroness Prashar: My Lords, I propose to confine my remarks to those parts of the Bill that relate to the Civil Service and—if I may clarify this for the noble and learned Lord, Lord Mackay—not public appointments, because there is a separate Commissioner for Public Appointments. I do so having recently completed my term of office as the First Civil Service Commissioner and having waited in vain for the Government to announce the results of the consultation exercise that they initiated in November 2004 on a Civil Service Bill.
	I begin by thanking the noble Lord, Lord Lester of Herne Hill, for achieving something that the Government seem to find so difficult—the introduction of a Bill that would place the Civil Service on a statutory footing and directly under parliamentary oversight. I also applaud his efforts to strengthen what he calls representative democracy and parliamentary sovereignty.
	I strongly support legislation to entrench in statute the key values of the Civil Service and the role of the Civil Service Commission, and to clarify the respective roles of Ministers, special advisers and civil servants. The Civil Service has, quite rightly, embarked on a programme of reform in response to changing demands but, at a time of rapid change, there is a need more than ever to ensure that the core values of the Civil Service, which are neither incompatible nor peripheral to the process of change, are embedded in statute.
	By placing the constitutional position of the Civil Service, as distinct from its daily management, under the oversight of Parliament; by providing for the respective roles and responsibilities of Ministers, political advisers and civil servants to be clearly defined within the overall constitutional framework and subject to independent monitoring; and by placing the Civil Service more directly under the oversight of Parliament, we will provide an important reassurance about the continued impartiality of the Civil Service and its enduring values. I am also of the view that the scope of any Bill dealing with the Civil Service should not be too prescriptive or drafted in a way which would inhibit or impede its evolution as an organisation, because one argument against a Civil Service Bill is that it would affect the organisational development of the Civil Service. I take the view that, if you disentangled the two, you would entrench the constitutional position in statute and free the Civil Service to develop as an organisation.
	There are five aspects of the Bill on which I would like to comment very briefly. First, it is important that the legislation reinforces the status of the Civil Service Commissioners as an independent body of people concerned with the maintenance of an effective and politically impartial Civil Service. To some degree this is met by the Bill, in that it provides for the appointment of the First Civil Service Commissioner by agreement with the Opposition parties. However, additional reassurance about the commission's independence and political impartiality would, I think, be offered if the Bill also provided that appointment panels for the First Commissioner were chaired by someone independent of government and comprised a majority of people who were independent of government.
	Secondly, any Bill must clearly set out the role of the commissioners in relation to ensuring that the key recruitment principle of selection on merit on the basis of fair and open competition is applied to appointments to the Civil Service. It should also enable the commissioners to allow appointments to be made outside of this principle in certain limited circumstances, as is currently the case.
	It is important, however, that the legislation does not prescribe how the commissioners will undertake their function in detail. They need to be firm on principle but flexible in practice. The flexibility inherent in the recruitment code means that the commissioners can respond to changing circumstances and situations without in any way compromising principles. For example, with regard to the principle of openness, additional advice on the use of the Internet for advertising of posts has recently been incorporated. Generally commissioners want to encourage innovation and experiment within the framework of the recruitment code. I am pleased, therefore, that the Bill supports that approach.
	Thirdly, the way the Civil Service code has been promoted by the departments has been inadequate. That has been the case ever since its introduction in 1996. It has often been omitted from departments' induction programmes, and I found that too many staff, new entrants and old hands alike, seemed totally unaware of the values it describes and of what to do should they find themselves being asked to act in a way that is inconsistent with the role of the civil servant. As the noble Lord, Lord Lester, said, work has recently been undertaken on turning the code into something much more accessible and readable, but that is only a start. Against a background of change and greater movement of staff, it is critical that the code is continually promoted, not just as something civil servants turn to when things go wrong, but rather as a living document that sets up the constitutional framework within which they work and the values they are expected to uphold. There is an important role here for the commissioners in monitoring whether departments positively promote the code.
	Fourthly, I am concerned that, however well the code is promoted in future, civil servants will still find it difficult to raise issues under the code. At present the commissioners do not have the power to initiate their own inquiries; they have to wait for someone to appeal. I therefore support the part of the Bill that gives Civil Service commissioners the power to initiate inquiries, rather than having to wait for an appeal from an individual civil servant under the code. Finally, I believe it is quite consistent in a statutory framework that provides for parliamentary oversight of Civil Service standards for the commissioners to report to Parliament annually on their work. It is right that they account for their work and are examined on it, and I am glad to see that provision in the Bill.
	In conclusion, we all agree that the Civil Service is a public asset. It exists in the public interest, and it is in the public interest that we maintain a Civil Service that transcends the interests of any one administration. We must avoid legislation in this area becoming a political issue, because the issues raised under the Bill affect us in the public interest. When I have spoken in the past, I have recommended that we should set up a Joint Committee of both Houses that might be established to take forward some of the considerations that would be most appropriate, and avoid it becoming a political issue. I hope the Government will give a clear indication today of when they might bring forward legislation on the Civil Service, or that they might support the noble Lord's Bill.

Lord Sheldon: My Lords, it is of course conventional to congratulate and thank those who bring an important issue to the House, but the work done by the noble Lord, Lord Lester, in producing this Bill was considerable. The amount of effort that has been put into it must receive our gratitude and admiration.
	The question we have to ask is: why has no Civil Service legislation been enacted by the Government? For eight years, year after year, we have had of promises to bring in a Civil Service Bill. I have been urging the Government to say when that will come, and I have received assurances that it will happen eventually. We know the reality here: they do not want that Civil Service Bill, because it will lay down certain rules that a number of people are not too happy about. But we do want the Bill, because we have seen the decline of the Civil Service over the past few years, which has been a serious matter indeed. The Civil Service has declined from the ideals we maintained, from the time of the implementation of the Northcote-Trevelyan report 150 years ago right up to the past 20 or 30 years, and year after year we have seen that decline continue.
	The Northcote-Trevelyan reforms created standards, and not just for the Civil Service. It went much wider than that. Those standards transmuted into a number of official bodies, and even into certain public companies, because there were enormous advantages to introducing them. The last fundamental reform based upon a thorough study was the Fulton report, which brought about a substantial change by removing 1,400 classes of civil servant. In the messengerial class, for example, there were the ranks of messenger, superior messenger and top messenger; there were classes all over the service. We ended that. But, importantly, the report still respected the Civil Service ethos, its abilities and its role of seeing to the efficient and effective running of the country. An important part of the Bill of the noble Lord, Lord Lester, deals with much of that.
	The Bill also deals with special advisers, an area where we have seen most important changes over the past few years. The Fulton report supported the use of special advisers as people who could bring experience and expertise into the Civil Service, as well as their political affiliation. That was an advantage to the service. Special advisers played a useful role, and we have seen their numbers increase in recent years. In 1974, as Minister for the Civil Service, I had the task of approving the special advisers' salaries, which ranged from the higher salaries of Nicky Kaldor, Tommy Balogh and even Jack Straw, among others, to a few who received salaries of less than £3,000 a year, which, even with the difference in money values at that time, was pretty low. Still, I had no objection to any of those, so they went through.
	Clause 11(3) says that,
	"No special adviser may manage, direct or issue instructions to a civil servant in the discharge of that civil servant's public functions".
	That is an improvement on the previous Bill by the noble Lord, Lord Lester, of 18 December 2003, which said that no special advisers may exercise executive powers. He has made the wording more precise, which is an advantage. Special advisers played a useful role in government in bringing in outside expertise. They were people of some standing, brought in because they had something to contribute. They worked well with civil servants, who had respect for their abilities. The Civil Service welcomed them and accepted them. The advisers had their own political affiliations, and were useful to Ministers. That was what the Fulton committee had had in mind.
	The situation has now changed. In the ninth report of the Committee on Standards in Public Life, Professor Hennessy says:
	"the clout, as it were, of the permanent Civil Service advisers is much diminished compared to some of the special advisers".
	The noble Lord, Lord Lipsey, who I see in his place, added to that by comparing the Administration of James Callaghan with the current one and saying:
	"the current administration work with special advisers in departments in a way we did not".
	That shows how the situation has changed fundamentally from what we had in mind all those years ago, from Northcote-Trevelyan right up to our own time in political life.
	Mike Granatt, in paragraph 7.12 of the report, states:
	"There can be confusion, and I think this is one of the concerns that arises in times when things do not work well, that the special adviser may become a gatekeeper, and that civil servants do not have access to the Minister to provide advice, they merely become the recipient of instructions, one way or the other".
	That is the way that the role of special advisers has fundamentally changed; rather than offering expertise and information, they become rather more prominent in the work of departments.
	In paragraph 7.14, the committee recommends that,
	"special advisers should be separated out as a category of government servant distinct from the Civil Service and that this should be part of the legislation",
	which is discussed later on. Those are important recommendations indeed.
	My opinion is that no special adviser should exercise power over civil servants. As the noble Lord, Lord Lester, has pointed out, there were 38 special advisers in 1987, there are 78 now, 24 of whom work for the Prime Minister. That is more than assistance and advice; it is a sort of involvement that we never thought special advisers would have. They should not exercise that power over civil servants. We have been promised again and again over the past eight years a Civil Service Act. We need one to deal with the centralisation of power and to sort out the problems including those of the Civil Service. That is the most important aspect of this debate.
	What we have here is a situation where the kind of people who are brought in have greater power over the Civil Service, which means that the civil servants themselves have less. The civil servants are the basis of how governments operate. Of course special advisers have a role, but they should not be between the Government and Ministers and the Civil Service because that diminishes the role of Civil Service members themselves.
	Civil servants have difficulty with governments in power for several Parliaments. If it is a short Parliament, they retain their powers. If it is a long Parliament, they become distorted. With a lengthy Administration, civil servants have to modify their independent role. We have had two long-term governments recently and we have seen the effect that that has had on civil servants. Ministers may learn much about government because as they carry out their duties they learn how to handle matters rather better, but civil servants also need to be less dependent on them in how they maintain something of their role as guardians of the public interest. That is the important thing we need to consider today.

Lord Brittan of Spennithorne: My Lords, first, I crave the indulgence of the House for the fact that I will not be able to stay to the end of the debate. I have informed both the noble Lord, Lord Lester, and the usual channels, who have kindly said that they do not object.
	I warmly welcome the Bill and almost all the key provisions in it. I share with almost everyone who has spoken the feeling that we owe an immense gratitude to the noble Lord, Lord Lester, for taking so much trouble and bringing the Bill to the House.
	It is an important Bill although it is rightly and inevitably limited in scope. By that I mean that it is not in any sense an inevitable step towards a written constitution. Those who have hesitations about a written constitution need not in my view have hesitations about this Bill. I do not think that the Conservatives, whether with a large or a small "C", should be troubled by the fact that it controls the exercise of the Royal prerogative. It does not curb powers genuinely exercisable by the Crown, but does control the exercise of powers which are in practice exercised by the Government in the name of the Crown.
	I think it is important to be clear that that does not affect powers that need to be exercisable by the Crown itself, which in effect remain the power to dissolve Parliament and the power to appoint a Prime Minister. The exercise of those powers by the Crown is, of course, itself circumscribed by convention. But a residual power genuinely exercisable not on the advice of a Prime Minister is very important to deal with a situation where the result of an election or other political changes makes it unclear who the next Prime Minister should be or a situation where the exercise by a Prime Minister of the right of dissolution may be abused; for example, if he has not really effectively won an election and wants immediately to dissolve Parliament to have another go. It is important that the right to exercise the prerogative should be retained.
	The most important but the least spectacular feature of the Bill is to put the Civil Service on a proper statutory basis. It has long been called for, it has been long resisted, and it is definitely overdue. The broad framework set out in the Bill seems to me to be substantial and persuasive. The only particular point that I would single out for comment is the one relating to special advisers, where I not only agreed with but warmed to the points made with great force by the noble Lord, Lord Sheldon, just recently. Clause 11(3) is very welcome in making clear that special advisers may not,
	"manage, direct or issue instructions to a civil servant".
	That is an area where there has rightly been much and great suspicion of abuse in recent years.
	I would however go further than the Bill currently provides. I believe that it is important to limit the total number of special advisers, perhaps to do so in a flexible way, but to have some parliamentary control in a legislative form on that issue as well. As has been said and shown, there are now very many more special advisers than there were and there are far too many. I very much agree with the noble Lord, Lord Sheldon, that special advisers can be useful and probably even essential in today's world if they perform a unique political role and above all work with the grain of the system. My experience as a Minister was that they had to do that because they were only a handful and unless they secured the confidence of the civil servants they could not actually do the job for the Minister that they wanted. If they become too numerous, as they have become, instead of genuinely performing that role they become an overmighty elite corps who regard themselves as the guardians of political correctness, and that inevitably threatens the proper role of an independent Civil Service.
	Another extremely important part of the Bill is the provision that treaties have to be given parliamentary approval, in the case of the most important ones by the affirmative procedure before ratification. The web of international commitments that we enter into is in today's world constantly getting more extensive and more complex. I would not commend the procedure operating in Denmark whereby the government's handling of every step in negotiations on European legislation is controlled by parliament. But in a democratic society the right to give the ultimate say should be exercised by Parliament. It is not acceptable for a Government to be able to say, as has been known to happen, "We've already entered into an internationally binding commitment and you must therefore now approve it by giving legislative effect to what we have committed ourselves to and you must do whatever is necessary to make it possible for that to happen". That is unacceptable and savours of parliamentary blackmail.
	Still more important than the provision on the treaty right is the provision requiring parliamentary approval for direct participation in any war, international armed conflict or international peacekeeping activity. It is more important, but again in my view is fully justified. I understand the difficulty of governments having to disclose all the information upon which they are making decisions but all I can say is that the experience of recent conflicts, and most notably of the Iraq conflict, leads me to the view that the national interest is far more damaged by inadequate disclosure than by excessive disclosure. Indeed, I cannot think of a case where excessive disclosure has ever led to that damage. In practice, of course, a government could not survive if Parliament did not support military action that had already been taken, but it is unreal and savours of blackmail of Parliament for a government to demand support only when British forces are already either engaged or massively committed.
	In the case of real emergency the Bill permits the Government to take action without parliamentary approval and has to justify it subsequently. I would go further and require not just a statement of reasons but actual subsequent parliamentary approval even if by then the scales were so loaded in favour of that being given for the reason that I have already mentioned. One of the reasons I say that is because in practice the curious fact is that today's wars seem to be increasingly "voluntary" in the sense that they are not a response to a sudden attack but a conscious decision to take military action in a particular situation. In that situation, parliamentary approval should be a real check. What may be more difficult is the precise definition of "war" or "international armed conflict". I suspect that that may need further discussion in Committee.
	Finally, I welcome the proposals to make certain public appointments subject to parliamentary approval by the Public Appointments Committee. The list is actually rather a modest one although I appreciate that the Bill makes provision for its possible extension. I hope that that will be exercised or that there will be amendments even at this stage, including other appointments which are not covered in the present draft of the Bill.
	What I do not quite understand is why membership of the Public Appointments Committee provided for in the Bill is confined to Members of the House of Commons while membership of the Executive Powers Review Committee is to be drawn from both Houses of Parliament. It seems to me that it would not be excessively ambitious for this House to be included in the pool from which members of the Public Appointments Committee could be drawn.
	I very much hope that there will be cross-party support for the highly desirable reforms put forward in the Bill. I welcome the fact that the new leader of the Conservative Party has nodded very strongly in that direction. I believe that the Bill, when enacted, will significantly improve the governance of the United Kingdom and add a very welcome enhanced degree of parliamentary accountability which is appropriate to today.

Lord McNally: My Lords, I thank the noble and learned Lord, Lord Mackay, for his extremely generous good wishes to Sir Menzies Campbell, which I shall give to him when I see him in Harrogate later today. I am sure that the noble and learned Lord, Lord Mackay, will be aware than an earlier Ming dynasty was particularly rich and successful. We look forward to similar success.
	On the tributes to the noble Lord, Lord Lester, I can do no better than draw the House's attention to the spread of speakers today. Often when an initiative is taken by noble Lords on one Bench, noble Lords on other Benches are conspicuously absent. The spread of speakers today is very interesting. There are four from the Labour Party, four from the Conservatives, three from the Cross Benches and three from the Liberal Democrats. If you consider the experience of Law Officers, Cabinet Ministers, Permanent Under-Secretaries and Chairmen of the Civil Service Commission, you will see that an extremely rich galaxy of talent and experience is put at the disposal of the House today. In addition, there are one or two speakers, such as the noble Lord, Lord Lipsey, and me, whose main claim to fame is that we were once special advisers.
	When I first came to this House, I served on the Select Committee on the public service chaired by the noble and learned Lord, Lord Slynn, and on the Select Committee on freedom of information. However, the battle honour of which I am most proud is that I was also a member of the Cook-Maclennan committee that looked at constitutional reform—the joint committee of Labour and Liberal Democrats before the 1997 election. I am extremely pleased that my noble friend Lord Maclennan will sum up from the Liberal Democrat Benches.
	The other thing that I am pleased about is that the author of a statement which I often quote has already spoken today. I refer to the noble Lord, Lord Sheldon, who famously said that the two great gifts bequeathed by the 20th century to the 21st in Britain were the BBC and the Civil Service. We may still have to battle for the integrity of both. Today we are concentrating on the Civil Service.
	It is worth remembering the circumstances of Cook-Maclennan. It was a shared analysis by both Labour and Liberal Democrats that our system of government needed radical reform if it was to be fit for purpose in the 21st century. It was the Cook-Maclennan report which gave the radical impulse to the first term of new Labour government after 1997: the Human Rights Act; freedom of information; devolved government for London, Wales and Scotland; PR in devolved government and Europe; the first stages of Lords reform; and the Jenkins commission on voting reform for Westminster. We on the Liberal Democrat Benches still see Cook-Maclennan as work in progress.
	By contrast, one gets the impression that the Government now see constitutional reform as a damage limitation exercise. Indeed, it is doubtful whether we would see either the Human Rights Act or the Freedom of Information Act passed today. There is no indication that the Government share either the sense of urgency or the radical impulses which motivated Cook-Maclennan and were reinforced by the recent Power report under the noble Baroness, Lady Kennedy—another voice we miss today.
	The concern that motivated Cook-Maclennan, and is reinforced by the Power commission, is of a dangerous disconnect between government and governed. Turnout at elections and levels of public apathy and cynicism, particularly among the young, have reached dangerous levels. Democracies need participating democrats to make them work. Governance at all levels needs the respect and confidence of the governed, yet the Prime Minister in particular seems to be cocooned in a world of unreality.
	I make no comment about the Jowell affair; I have great respect for the Minister concerned. I say only this. I remember that Hugh Dalton quit ministerial office because some budget secrets appeared in the stop press of a London newspaper. When I was at university, we were told that Sir Thomas Dugdale took ministerial responsibility for the Crichel Down affair—an action of his own department of which he was not aware.
	Today the ministerial code lies in tatters and there is no public confidence in the Prime Minister's stewardship of these matters. Is it any wonder? Advice on key matters affecting probity in governance from the Committee on Standards in Public Life, the Electoral Commission and respected Select Committees of Parliament are rejected or ignored. The noble and learned Lord, Lord Mackay, referred to the cavalier way in which the Attorney-General's advice was first secret and then made public when politically expedient. Last night we had the pre-spin of what the Secretary of the Cabinet had said on the Jowell affair. Mr Geoff Hoon even appeared on television explicitly saying that the Secretary of the Cabinet had exonerated Ms Jowell, when in fact his report said no such thing. The whole matter—as has gone on for years—had been pre-leaked and spun to the press with no idea of a statement to Parliament. We have had internal inquiries followed by exoneration, which give an impression of ultimate responsibility in government that would not pass muster as oversight of a parish council.
	There are some good people in the Labour Party and there are still some radical impulses on the Government Benches. But there really is a stench of decay about the Blair administration and its obsession with wealth and celebrity, and pelf and place, which frankly makes one weep. As for the culture of secrecy, rather than being banished from Whitehall, it is safe and well and sitting in the back of various ministerial limos. Hence the need for this Bill, which should have graced the Queen's Speech of a third term Labour Government. Like other Lester initiatives before it, I have every confidence that one day it will see the light of day as the law of the land. As my noble friend Lord Lester has made clear, the proposals on the Royal Prerogatives have nothing to do with the powers of the Queen and a great deal to do with the anachronisms and loopholes being used as a fig leaf by Ministers to protect certain of their actions from full parliamentary scrutiny.
	A number of Members more expert than I am have talked about war powers, which I will not dwell on for too long. Getting responsibility for war powers, as a number of Members have said, is not the end of the matter. It will always be difficult to assess these matters. Again looking to history, we see that Sir Anthony Nutting, who was right about Suez, had his ministerial career ended, whereas Selwyn Lloyd, who misled Parliament, ended up as Speaker. History has some strange stories to tell. The powers given by this Bill on prerogatives, war making and treaties are all welcomed by those who want to see powers of scrutiny and accountability extended.
	Unlike my noble friend Lord Lester, I am glad to see the noble Lord, Lord Bassam, on the Bench. I am sure that we will hear how eager the Government are to have a Civil Service Bill, in spite of the fact that, as the noble Lord, Lord Sheldon, has indicated, all the news from the Downing Street sofa is that we will get one over the Prime Minister's dead body. The noble Lord, Lord Bassam, is the Trevor Bailey of Front-Bench politics. He is a man who can keep his end up and stay at the crease for days on end without scoring or even attempting a run. What worries me is the body language of the Prime Minister. There are the same vibes as those that used to come from time to time from Mrs Thatcher, as she was then—if only he could get more of his private sector chums into government, with a get-up-and-go, can-do approach, all would be well.
	The noble Baroness, Lady Prashar, referred to the programme of reform that is now under way. We all welcome attempts to bring greater efficiency and productivity into the public services. We welcome the Government's initiatives to deliver greater diversity to all levels of the Civil Service, not least to permanent secretary level. I was struck by a statement made by Anne-Marie Lawlor, the director of the leadership and development strategy for the Civil Service, who said:
	"We know that graduates want to come and work for us because they think we are a good employer, but most importantly they want to make a positive difference to society".
	My heart rejoiced at reading that. Some nine years ago, the Select Committee on which I served under the noble and learned Lord, Lord Slynn, concluded that in the British Civil Service there was a distinctive public service ethos, which was massively in the public interest to nurture and preserve. That is the gift that the noble Lord, Lord Sheldon, talked about, which has as its roots the Northcote-Trevelyan principles of political neutrality and appointment and promotion on merit.
	Like Prime Ministers before him, the Prime Minister pulls on the levers of power and nothing happens. So in his frustration he packs Downing Street with special advisers staffing a variety of Orwellian delivery units. Across the board, despite some of today's criticisms, most special advisers operate much as they have done since 1974. It is in No. 10 that their powers have been extended, as the noble Lord, Lord Lipsey, pointed out in his evidence to the Committee on Standards in Public Life. The need for the protections contained in this Bill comes from the No. 10 experience. The role given to Alastair Campbell must never be repeated, combining political propaganda with government information as it did.
	I agree with the noble Lord, Lord Sheldon, that there are problems from long periods of one-party government. In the opposite direction from special advisers, I believe that neither the noble Lord, Lord Powell, nor Bernard Ingham served the public interest by remaining in their position as civil servants throughout the Thatcher administration. It is wrong when civil servants merge and morph into political appointments. We know that Ministers like to keep friendly faces around them, but it does not help the independence of the Civil Service. We welcome the initiatives on diversity as well as the strengthening of the Civil Service Code under Gus O'Donnell, but we still want the protections of the public service ethos that the Bill would provide. I welcome the suggestion made by the noble Baroness, Lady Prashar, of having a Joint Committee to carry matters forward.
	I sniff the whiff of reform in the air. As has been said, Mr Cameron has established his task forces and Gordon Brown stirs like an old grizzly from his winter slumber. The Power report reawakens the spirit of Cook-Maclennan and Ming Campbell is willing to lead the Liberal Democrats from the front as thunderers for reform. Such a mood of broad consensus comes but rarely. Will Mr Blair, ensconced in his winter palace, hear it? I do not know. I hope that today's debate and the granting of a Second Reading to the Bill will be a timely wake-up call to him and that we can move forward to a rich and constructive Committee stage.

Lord Lipsey: My Lords, it is traditional for those in this position in the speaking list to start by making the old joke about everything that there is to be said having been said and not everyone having said it. I may get away with not being subject to that charge today, because on the whole my remarks will run contrary to the main spirit of debate. There is one thing on which I am absolutely at one with the House, and that is in congratulating the noble Lord, Lord Lester, on preparing this fine draft legislation and on initiating the debate today. These are issues of the highest importance where the experience of your Lordships' House has a great deal to offer, and we owe him a great debt of gratitude.
	What I am going to say first may sound like damning with faint praise, but it is not really meant to be. There is much in the Bill that will do some good, and there is little in the Bill—with one possible exception that I will come to—that will do much harm, so to that extent I support it. The specific proposal about which I have some doubts concerns the Royal prerogative in matters of peace and war. That proposal has been endorsed by both David Cameron and Gordon Brown, so I am perhaps on risky ground in disputing it, but neither of those two gentlemen has yet been Prime Minister. One or the other—perhaps both—one day may be. Their principal duty if they do attain that office will be to maintain the security of the nation. Would that proposal help in that?
	The secret of preserving peace is that a prospective enemy has no doubt that you are willing and prepared to go to war. I wonder whether there are circumstances in which this provision could cast doubt on that preparedness, although I know that there are provisions for urgent action in the Bill. Perhaps a rogue state threatens us. Perhaps the Government's tough stance towards it causes parliamentary controversy. Perhaps its rather inexperienced diplomats misread the situation. Perhaps they think that John McDonnell and Jeremy Corbyn speak for England and doubt that the Government would win a parliamentary majority for war. Perhaps that doubt, mistaken though it would be, would cause them to embark on a fatal adventure. I accept that that contingency is pretty remote, but the cost if it happened would be pretty high. That proposal, which has become incredibly fashionable, deserves more consideration, including by Britain's military and security advisers, before it is passed into law. I say that in passing.
	I want to devote my remaining remarks to two premises that seem to underlie the case for the Bill, and on which I am not altogether convinced. One is that an important cause of our current political malaise is inadequate parliamentary accountability. The other is that the solution to this lies in new laws and rules. The rules, for instance, in this Bill are based in statutory codes of practice for civil servants and advisers.
	On parliamentary accountability, it is now pretty well the conventional wisdom that it is in decline. I cannot see it. It is a third of a century since I started working in the Houses of Parliament, when I was political adviser to Anthony Crosland. When I look at the changes since that time, parliamentary accountability has not decreased, rather it has hugely increased. I will give noble Lords three examples. The Whips have nothing like the power they had in 1972 when a vote against the Government was a sackable offence. Parliamentary revolt is now permanently endemic—and I welcome that.
	On the examination of the Government's policies, the Select Committee system invented by the noble Lord, Lord St John of Fawsley, has been expanded hugely. The committees are much better services, the members work harder, they have more research behind them, the chairmen are respected and rewarded and they kowtow to government less and less.
	Meanwhile, your Lordships' House, which, shortly before I started work in this place, was virtually moribund, has become—not always to my taste—more assertive. Why is this evident growth in parliamentary accountability so frequently overlooked? I think the answer is that it has gone pari passu with another much less desirable development; namely, the overweening power of the media, a matter again highlighted this week by the witch hunt against the culture secretary. Parliament is holding Ministers to account, but this gets little attention when they are suffering a far worse ordeal by the media. I fear that the effect has been one that we have rightly deplored in this debate—namely, government spends too much time on spin, which deals with the media, rather than on substance, which deals with parliamentary accountability. But I am more concerned that we do something about the media and the spin so that the parliamentary scrutiny, which has developed for the better, shines out as the beacon at the heart of making the executive accountable.
	My second doubt concerns the place of rules and regulation in enforcing standards in public life. Again this week that has been highlighted by the Mills/Jowell affair. Looking at it, there seems to be something of a pattern. Rules are introduced—this Bill, that code and a scrutiny committee. Yet, despite that, when a real live problem arises, the rules often do not seem to cover the matter. You would think that that would cast some doubt on whether rules are a good way of dealing with this stuff. But it does not. It creates a demand for new rules. The Nolan rules are no longer good enough for public appointments, so we need some more. Ministerial codes do not deal with Minister's spouses. If we have them for Minister's children we will need them for their ex wives and second cousins twice removed and so on. In each case, this extension is argued for by the press and by eminent bodies like the Graham committee on standards in public life on the ground that it is essential to public confidence. If rules were the answer to restoring public confidence, the public would never have been more confident in Parliament than they are now. The accumulation of rules over the past couple of decades has been great. It has not done anything for public confidence. The public seems to think that if politics need all these rules, it must be a dirty business, which in my considered view in this country it is not.
	I apply that with a special force to the constant attempt to design new and stricter rules to special advisers, of which group the noble Lords, Lord Lester and Lord McNally, are distinguished former members and I was rather less distinguish. I still feel that we are trying to shove special advisers into boxes which are appropriate for civil servants. I know that the noble Lord, Lord Lester, has tried to avoid that by his references to impartiality not being the necessary quality. When I read the special advisers' code, I wonder whether any special adviser who took it literally would be able to do the job his Minister required of him. We had far fewer such rules when we were special advisers, but I think we had a better idea than some of the boys today of what behaviour was acceptable.
	My concluding and perhaps central point is that, in general, rules do not determine outcomes, although they can help in doing so. Rules are but a part of something wider, and that something is culture. What is going wrong, in so far as anything is going wrong with our system, is down to a laxer culture largely generated by the culture of the media, which no longer seem to relate to the realities but solely to witch hunting. That is what is causing our problems. There is only one kind of regulation that ultimately works; that is, self-regulation. Rules can play only a relatively restricted part in creating that self-regulation. The culture of government is the most important thing and needs the most urgent attention.
	The Bill of the noble Lord, Lord Lester, welcome though most of it is, is not a substitute for appropriate culture changes, nor is it a panacea. I am absolutely sure that the noble Lord, Lord Lester, knowing him as I do, would not claim otherwise.

Lord Mayhew of Twysden: My Lords, one of the advantages of yielding to a request from a colleague to give up one's place in the list of speakers is that you find, particularly if it is the noble Lord, Lord Brittan, that he has said everything that you want to say and you can get away, therefore, with being a lot more brief, which is always welcome in this House. I cannot, however, possibly neglect to say that I have admired enormously, as have all the speakers who have addressed your Lordships' House today, the assiduity in the drafting and the thoroughness and the care that has distinguished the work of the noble Lord, Lord Lester, in bringing forward this Bill. It is long overdue, for reasons I will touch on. It is enormously valuable because it has, as my noble and learned friend Lord Mackay of Clashfern said, opened up for us a means of discussing important issues.
	The Bill resembles, if you like, a multi-barrelled rocket launcher. Each of its missiles is separately targeted, but each is intended to detonate within the area of the overall objective. That overall objective is the extension—I was going to say the preservation—of parliamentary control over the executive. Within the time available, I want to deal only with its provisions for the prerogative and then with those for the Civil Service and those for the special advisers—that is, Parts 1 and 2. The Bill is surely implementing a reform whose time has come when it seeks to bring onto a statutory basis those residual prerogative powers that, by a process which we all know, over the centuries have become delegated to Ministers and exercisable by them.
	The force of the argument for that reform can be put in this way. The stability of our country depends on our consent for being governed. Of course, governments cannot please all of us all the time— governments cannot even please all of us some of the time—but we put up with that, and are used to it, provided that one condition and one only is satisfied. That is that the Executive of the day is dependent on retaining the confidence of a free Parliament, a Parliament in which our dissent can be fairly, freely—even, on occasion, decisively—heard. That is the key condition for our consent to being governed and it is entirely absent in the far from negligible powers that I am discussing. They are conveniently listed in the Explanatory Notes at paragraph 12. They are far from negligible, as has been mentioned in many speeches today.
	The power that has attracted most attention in this debate has been the power to commit British troops to conflict situations. The importance of that issue has been brought before us many times recently—in particular, by the commitment to participate in the Iraq war. It is not necessary to go into the merits or demerits of the lawfulness of that action on the part of the Executive. I happen to think that, on balance, the Attorney-General's argument was right; although the alternative arguments were entirely respectably advanced. I said that at the time and I hold to that view, but it is not necessary for us to determine that to be able to see that immense interest, to put it mildly, has been taken in the country in the fact that troops can be committed to conflict without prior parliamentary authority.
	I do not forget that, in the case of the Iraq war, the Government accorded to the House of Commons a substantive Motion and secured support for it. I also think that it is probable that, in future, it will be politically impossible for any major deployment of that character to take place without prior authority accorded by Parliament. But that does not decide the issue. It is not enough to say, "Oh well, it will always happen anyway". In the interests of the military, in particular, it is now necessary for there to be a statutory requirement of the character proposed in the Bill. I am of course concerned, as anyone must be, by the point put forward by my noble and learned friend Lord Mackay about the difficulty of bringing the whole case before Parliament on grounds of intelligence, and so forth, but I am rather taken by the point made by my noble friend Lord Brittan—that the dangers of holding back information appear to be greater than those of making it public. However, we must take that point seriously and in Clause 3(3)(b), the Bill provides for an emergency where the Prime Minister certifies that action has had to be taken in advance. That needs to be carefully examined and, I think, goes some of the way towards providing the solution to the problem posed by my noble and learned friend.
	I turn to how the Bill deals with the Civil Service. So much has been said about that in a very approving tone that it is not necessary for me to take much time about it, save to express my warm welcome. It is absurd that the structure, organisation and management of the Civil Service, whose characteristics are so important to the maintenance of a free, democratic government and society and the rule of law, can be changed under the prerogative, with all the limitations on parliamentary scrutiny and judicial supervision that that carries with it today. I wonder why the Government have not brought forward that provision. The noble Lord, Lord McNally, took us through the history.
	I hope that the noble Lord, Lord Bassam, from his impregnable decision at the crease, will now tell us whether the Government will give the provision a fair wind and, if not, why not. After all, a statutory footing for the Civil Service has been recommended since Northcote-Trevelyan in 1853, so there has been plenty of time to think about it. The Government say that they have thought about it. Two years or more ago, the Deputy Prime Minister said that a Bill would be enacted. What has happened to it? Why was there nothing about that in the Queen's Speech last May?
	Lastly, as for special advisers, that burgeoning breed needs, with the greatest respect to the noble Lord, Lord Lipsey, whose speech I listened to with my usual admiration, to be brought under statutory control. The worst example of the dangers attending the current system is when the Prime Minister gave power to special advisers to give instructions to civil servants telling them what to do and how to do it. I am very glad to see a specific provision in the Bill making that beyond the pale.
	The Bill is long overdue. I give it the warmest of welcomes and, and as another noble Lord just said, I look forward to a very rich Committee.

Lord Armstrong of Ilminster: My Lords, perhaps I may intervene briefly before the winding-up speeches. I am grateful to the noble Lord, Lord Maclennan, for allowing me to do so. I should have been sad not to be here to represent those Members of your Lordships' House who have had long service in the public service of government. I add my congratulations to those that have already been expressed to the noble Lord, Lord Lester, on his introduction of the Bill and, if I may say so, on the skill with which he has drafted it. That is no greater than I would have expected of him, but it still needs to be recorded and recognised.
	When we come to consider the Bill in Committee, if we are allowed to do so, I hope that we shall look closely at the arrangements proposed for declaration of war or committal of British troops to war and for ratification of treaties. Clearly, in the Iraqi situation, there was a lot of parliamentary debate and, in the event, there was a parliamentary vote. However, there may still be circumstances in which the Government must go to war or declare war without there being a chance to seek parliamentary approval before doing so. The Bill makes provision for that; we shall need to consider whether that provision is adequate. On treaties, it is important that when the Government sign a treaty they commit the nation to the provisions of the treaty. There should be an understanding among the other signatories to the treaty that that commitment is given in good faith and will be honoured. We need to ensure that provision is made for that.
	As regards the Civil Service parts of the Bill, your Lordships will not be surprised to hear that I am entirely happy that civil servants should be required to act with honesty, integrity, impartiality and objectivity and that it should be a ministerial duty to uphold the independence and impartiality of the Civil Service. Indeed, I would go further: Ministers should be required to respect those qualities. I also strongly support what is proposed for special advisers and what has been said on that subject in previous speeches.
	I shall not discuss the other parts of the Bill, because it is my duty to be brief. I shall say only that the need for such a Bill stems from a gradually increasing lack of trust in government. We have seen that lack of trust again this past week. I was relieved when the decision about the Secretary Of State for Culture, Media and Sport was taken openly and advisedly by the Prime Minister, not by the Cabinet Secretary. It seems right that Prime Minister accepts the responsibility. If there were trust in the Government's willingness to observe the principles that underlie this Bill, we would not need legislation. If we try to tie up the Government with increasing regulation, whether by monitoring, by Parliament, by parliamentary committees or non-parliamentary bodies, governments will always be tempted to see whether they can find some way around it and do what they want to do that escapes the definitions in the Bill.
	That is why I have not been an enthusiast for a Civil Service Bill, although I recognise that my successors, other than the noble Lord, Lord Turnbull, have been. If a government were, on appointment, to issue a White Paper that committed them not only to the principles but to some of the details of the Bill, and that could be regarded as what was sometimes called a solemn and binding declaration of governmental purpose, and if that purpose were ratified and endorsed by the Opposition of the day and when that Opposition came into government, I for my part should be content to live with that and spare the need for legislation, because it would put responsibility where it belongs and would lay the foundations for an improvement in the trust that Parliament and the public have in the government of the day.

Lord Maclennan of Rogart: My Lords, I am very happy to have been able to hear from the noble Lord who has just spoken, not least because of my recollection of my first encounter with him in 1974, when he conveyed to me the extraordinarily welcome news that I was to be appointed to the then government in the most junior capacity imaginable. I have followed his utterances with enormous interest ever since.
	In speaking as the noble Lord did of the situation that has given rise to this Bill and the lack of trust, his words brought back to me a conversation that I had with Robin Cook, 48 hours before he died, walking around my garden on the north coast of Scotland. Far from taking pride in the measures of reform which he had been so instrumental in promoting—he not only created a policy programme for the Labour Party before it entered government but, as Leader of the House of Commons, he sought to place at the forefront of the government's programme changes that would make the House of Commons more effective in holding the Executive to account—he was still concerned for the future and feared that the lack of trust in government was growing. I wholly accept what the noble Lord, Lord Lipsey, said in his extremely interesting and thoughtful speech about the press that more needs to be done by cross-party agreement. That has been characteristic of today's debate, which has been of an unusually high order, although this House, when it stands back, is often capable of delivering such sound sense as we have heard on both sides.
	I, too, begin by expressing the enormous debt which those of us who are privileged to contribute to this debate feel we owe my noble friend Lord Lester of Herne Hill for the extraordinary work that he has done, not only in introducing the Bill in such a remarkably finished condition and his efforts to explain its possible operation, but for the long years of patient incremental work advocating reforms of the constitution that might be acceptable at the time, pushing out the debate ever further forward and giving those who have concerns the ammunition and the routes ahead to develop the process of reform. It has been a remarkable life's work. My party and, I believe, all parties are immensely indebted to my noble friend.
	I shall allude quickly to the one measure in the Bill that has not been touched on; the reference to enabling the ombudsman to take up matters by direct approach in parallel with the provision that allows Members of Parliament to make approaches. It has been discussed in this House before. It is a sensible proposal and, as one who introduced a Private Member's Bill to enable the local government ombudsman to be set up with just such powers, I hope that the Government will not regard it as seriously controversial and that the Minister will indicate that it will be acceptable in principle.
	The debate has focused mostly on what might be regarded as current business, although it is curiously difficult to embrace this business—that is, the Government's intention to introduce a measure to place on a statutory footing the independence and promotion on merit of the Civil Service that have characterised it in the past. I know that my noble friend would have preferred not to have had to introduce that measure. It does seem pre-eminently to be a matter for the Government, and one on which they have been advised by the noble Baroness, Lady Prashar, in her role as the First Civil Service Commissioner, and by Sir Alistair Graham, chairman of the Committee on Standards in Public Life, and his predecessors. It has been supported, I believe, on all sides. It has had the powerful support of the Civil Service unions and many senior figures in the Civil Service. It seems to be almost beyond controversy, and it becomes very hard to understand why there is such a blockage. I am bound to say that those who have pointed the finger at No. 10 seem to be doing nothing less than finding where the culprit truly resides.
	I wholly agree with my distinguished leader, my noble friend Lord McNally, that the Prime Minister apparently regards this as something that will curtail his freedom to act in an almost extra-constitutional fashion to fit his discretionary powers to the needs of the moment in a way that damages the public perception of governance. I was impressed by the passion which the noble Lord, Lord Sheldon, brought to that consideration, speaking as he does from long experience in government and, in his role as chairman of the Public Accounts Committee, of scrutiny of government, with a real understanding of the real issues. At this stage in the debate, I can add only an appeal to the noble Lord, Lord Bassam. If he not able to do more than play a dead bat today, to take back to his colleagues the honest sense of this House, which has been expressed by all speakers, that this matter will not brook further delay. Eight years is enough time; let it suffice. The time has come for a decision.
	Encouragement is to be found in recent speeches by Mr David Cameron and Mr Gordon Brown about the need for constitutional reform and, in particular, in what they have had to say about Crown prerogative. The desire to establish that the powers exercised in the name of the Crown by the Executive are in fact drawn from a popular mandate expressed by representative parliamentarians is surely in keeping with the mood of the times. It is not easy to rebuild popular trust in our constitutional processes if it is to be accepted, on a continuing basis, that the great powers of war and peace are exercised by heads of government—and it increasingly appears that that is so—by virtue of an historical trickle-down from the Crown. If we are trying to speak to the public, and to young people, about how our constitution works, and if governance is based in democracy, then we have to address that. It is not simply pettifogging attachment to rules or the belief that rules and regulations are salvation. It is about creating the very ethos that the noble Lord, Lord Lipsey, so strongly advocated. We cannot do that without the full understanding of the press, but the defence—the mere explanation—of the historical basis for the exercise of those powers is not compelling in the world in which we live.
	It would enable the parliamentary part of our governance to act more effectively in scrutiny and oversight if we set these things out in statute. My noble friend Lord Lester has attempted to explain in some detail how he would deal with the obvious difficulties, such as that eloquently pointed out by the noble and learned Lord, Lord Mackay of Clashfern that governments might not be able to provide Parliament with all the information. There is some merit in the approach that my noble friend has taken in attempting to deal with issues of that sort, though I was greatly attracted by a simple legislative proposal advanced about a year ago by Adam Tomkins, the John Millar Professor of Public Law at the University of Glasgow. Referring to the parliamentary prerogative, he suggested that the simplest solution—which would certainly concentrate people's minds—would be for Parliament to,
	"pass a Prerogative (Abolition) Act. The Act should contain two sections. Section 1 should provide that 'all prerogative powers shall be abolished' and section 2 should provide (with a nice touch of irony) that 'section 1 shall come into force one year after this Act receives the royal assent'. That would give the government one year in which to introduce legislation that, when passed, would confer on the government such powers as Parliament considers it needs in place of its former prerogative powers".
	That would certainly pass the buck from us here. However, I think that the approach of my noble friend Lord Lester is the one that will commend itself. Indeed, it has done so in this debate.
	I shall conclude by addressing an issue that goes beyond the immediate ambit of the Bill, which is how we take these matters forward if we find that we cannot make progress here. I hope that the Bill will make progress into later stages of discussion so that the arguments are better teased out, heard and reported. None the less, we have to accept that these matters require popular involvement, cross party discussion and the full interplay of Parliament in that process. I commend for the attention of the House the process that was followed in Scotland in considering devolution for the long years when it was not being discussed and during which forward movement was impossible. I refer to the establishment of a constitutional convention to enable discussions to be continued. It would involve parties of all political persuasion and some interests, such as the Church, the trade unions, industry, and other bodies that are particularly interested in this, including the sort of people who were so helpful in the POWER inquiry. It would be a way in which we could systematically seek to advance these powerful and much-needed reforms. I conclude by commending such reforms to this House. I hope that the Bill will progress.

Lord Kingsland: My Lords, I shall join in all the remarks that noble Lords have made about the arrival of the Bill in this House. I, too, congratulate the noble Lord, Lord Lester of Herne Hill, on introducing it. It has served two important purposes. First, the Bill, in itself, manifests the noble Lord's characteristic blend of industry, intellect and—dare I say it—political shrewdness. Secondly, the timing of the Bill is a powerful reminder to the Government that there is unfinished business in relation to Civil Service reform; business which has been long-heralded, but has remained undelivered. One of the responses that I hope the Minister will give is an explanation of why that is so.
	As noble Lords know, the leader of the Conservative Party, the right honourable David Cameron, made a speech on 6 February that dealt with the principles that underlie the Bill of the noble Lord, Lord Lester. Mr Cameron said:
	"I believe the time has come to look at those powers exercised by Ministers under the Royal Prerogative. Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making government more accountable".
	Those remarks were made on the day that a committee, under the chairmanship of the right honourable Kenneth Clarke, was established to take evidence on these matters. That both helps and hinders me in speaking from the Opposition Dispatch Box. It helps me because I can express broad sympathy for the objectives of the Bill; but, on the other hand, I am unable at this stage to endorse every single clause and subsection.
	The noble Lord, Lord Lester of Herne Hill, was right to concentrate on the control of prerogative powers and not to seek to raise questions about their extent. Quite apart from the merits of that, the better targeted the Bill, the more likely it is to succeed.
	There is a very important gap in the way that we as a nation can control prerogative powers in the context of what the judges are doing. In recent years, it has often been the case that the judiciary has been the most effective means of containing Ministers' powers. Indeed, it has done so to such a degree that it has, from time to time, come under quite sharp criticism from government Ministers.
	However, the role of the judiciary in relation to prerogative powers has been, if anything, in the reverse direction. Although the judiciary has accepted that it has control over the exercise of the Royal prerogative as a matter of principle, on the two fundamental issues with which we have today concerned ourselves—the decision to go to war and the making of treaties—in the 1985 case, Council of Civil Service Unions v the Minister for the Civil Service, the court unequivocally said that it would not seek to examine the exercise of the prerogative in those areas. So if the courts have declared themselves functus officio, Parliament clearly has a particularly heavy responsibility in relation to these powers.
	I suspect that, unless the Minister has undergone a magic transformation from Bailey to Compton, he will tell your Lordships that there is no problem here. The Government have the power to take decisions under the prerogative at the beginning; and Parliament has the right to question that exercise at a later stage. Indeed, Parliament can, if it wishes—and thinks that the exercise of the prerogative has been so abused—seek to censure the Government for it.
	It is easy to dismiss that argument outright; but it is worth reflecting on two matters that have been raised in this debate: one by the noble and learned Lord, Lord Archer of Sandwell; the other by my noble and learned friend Lord Mackay of Clashfern. The noble and learned Lord, Lord Archer of Sandwell, rightly reminded your Lordships that something that initially looks like quite a good idea frequently turns out to be quite a bad one. Making an early judgment is often disadvantageous to the person making it. If you couple that with the reflection of the noble and learned Lord, Lord Mackay of Clashfern—that, in undertaking a scrutiny role on the prerogative, Parliament must be aware of the dangers of being implicated in the Government's decision—what I think the Minister is going to say might not look quite so silly. While Parliament must find ways of exercising control over the prerogative, it must be careful not to be implicated in decisions which it later chooses to repudiate.

Lord Kingsland: My Lords, I am just going to deal with that. It seems that the situation for military decision-making on the one hand, and of treaties on the other, is quite distinct. The noble Lord, Lord Lester of Herne Hill, was wise to include Clause 3(3)(b) in his draft Bill, because there will clearly be circumstances where the Government are receiving information which it would be unwise to put into the public realm at that time, yet which will compel them to take decisions quickly and authoritatively before Parliament can be informed of the basis upon which those decisions are taken. My noble and learned friend Lord Mayhew of Twysden made that point with particular authority; but a number of your Lordships have also made it.
	The position of treaties is quite different. I say with great respect to the noble Lord, Lord Lester of Herne Hill, that, here, I do not think that his Bill goes far enough. The crucial moment for binding the Government internationally is the signing. Once the treaty is signed, there is little a Government can do to change it, unless they repudiate their international responsibilities. It must, therefore, follow that, if Parliament is going to have a role in shaping the outcome of a treaty negotiation, that must—to put it rather crudely—kick in before the signature stage.
	Scrutiny of treaties is different from scrutiny of acts over which the Government have complete control. The Government will be negotiating as one of a number. They will never be able to guarantee the outcome that Parliament wants. That is understood; and Parliament requires much greater flexibility in scrutinising treaties than it would in scrutinising ordinary legislation. Nevertheless—and I say this entirely personally as I in no way wish to bind the Opposition to this proposal—I would like to see, at the initial stages of negotiation, the Government coming to Parliament to lay before the House their negotiating objectives; not in detail, but in broad terms. I would like to see, in the course of negotiations, the Government coming back to a committee from time to time, to let it know how those negotiations are going on. Some of the sessions of that committee will inevitably have to be in camera; but the process will develop a degree of confidence between the Government and Parliament which should, by the time the Government come to sign the treaty, mean that they can do so confident that it will have the House's endorsement.
	I accept that, if one has an over-elaborate and intrusive role for Parliament at these stages, I may run into the difficulties mentioned by my noble and learned friend Lord Mackay of Clashfern. Nevertheless, at the moment, we know absolutely nothing about treaties until it is too late to do anything about them. I think particularly of the extradition treaty between the United States and ourselves; or, more broadly, the European arrest warrant. The House was presented with a fait accompli on matters which were absolutely fundamental to the human rights of individuals. Had we had the opportunity to deal with these matters in the course of the negotiations, I am convinced that there would have been a completely different result.
	The noble and learned Lord, Lord Archer of Sandwell, prompted me to consider this matter. I have now done so. If he disagrees with me, I nevertheless hope that he agrees that I have given it come consideration.
	The issues which have, on balance, dominated the debate today are those of the civil service. I endorse the idea of a Civil Service Bill, and therefore endorse what the noble Lord, Lord Lester of Herne Hill, has done, generally, in his Bill. We were all, as we always are, impressed by the speech of the noble Lord, Lord Sheldon. I find it hard to disagree with anything that he said. Perhaps on one matter raised by the noble Lord, Lord Brittan of Spennithorne, I am inclined to support the idea of a fixed upper limit for special advisers, rather than some other solution. Apart from that, I think everything that the noble Lords, Lord Sheldon and Lord Lester of Herne Hill, said about the kind of Civil Service we want in the future—the relationship of permanent civil servants with special advisers and the restraints which should be placed on special advisers—are extremely welcome.
	One matter which was not mentioned this morning was the relationship between the Civil Service and consultants. We all know that there has been an explosion of expenditure on consultants in the past 18 months to two years. There have been various theories advanced as to why this has been so, one being that, to the extent that we seek to contain the growing numbers of civil servants, there will be a strong temptation, when work has to be done, to farm it out.
	However, the scale of the increase of expenditure and the rates that are paid to those consultants is a matter that needs serious consideration and, perhaps, should be included in the Civil Service Bill as well. After all, a consultant does not operate under the same ethical system as a civil servant; yet his views will be considered by Ministers. There ought to be some measure of control in the manner in which this process operates.
	That part of the debate which related to the overall culture of the Civil Service was extremely important. The noble Lord, Lord Armstrong, referred to trust, which, in my submission, blends into culture. In a culture of trust, you do not need all these infernal rules that we now have to apply in relation to almost everything that we do.
	I, like the noble Lord, Lord Maclennan, thought that the noble Lord, Lord Lipsey, made an extremely thoughtful speech. I was not entirely convinced by his conclusions about the uselessness of rules in the light of the change of culture. However, the difficulty in the relationship between rules and culture is very important. As culture changes and rules are regarded as a nuisance, there is a temptation to produce more rules to deal with the growing difference between culture and rules. We will therefore have an endless series of rules and an endless series of tireless efforts to get around them.
	An important component to the solution of that problem has not yet been mentioned. It is one that is entirely, in a sense, in the hands of your Lordships' House. We need to consider in your Lordships' House—it would be true of another place, although it is not for me to suggest it—how to improve the weapons that our parliamentary committees have at their command to get at what is really going on behind the curtain. I would like to see the power to take evidence under oath in order to get at a particularly factual situation which is, as yet, obscure, and the power to subpoena both documents and Ministers. These matters should be considered soon by your Lordships' House.
	I have not quite devised or divined how to achieve that as yet. But, parallel with the progress of the Bill put forward by the noble Lord, Lord Lester of Herne Hill, I would like to see serious thought given in your Lordships' House to how we can make our parliamentary committees really get at what is going on behind the scenes in any particular area which we think needs investigating.
	As so many of your Lordships have said, this has been a debate of remarkable high quality—all the more enjoyable by the many shafts of wit.

Lord Lester of Herne Hill: My Lords, given all the real improvements which the Minister has referred to, does he accept that the parliamentary scrutiny of treaties beyond the European Union legislation should be no less intrusive and well informed than the scrutiny of European Union legislation? Is there any reason in principle why Parliament should not have as good scrutiny powers beyond the European Union for important general treaties, as they do within the European Union?

Lord Bassam of Brighton: My Lords, I agree that scrutiny is very important. The improvements which the noble Lord acknowledges provide a level of scrutiny which is not far out of kilter with what the noble Lord has described.
	In responding to the fourth report of the Public Administration Committee in another place, we said that we would reflect further on the committee's recommendations on treaties, many of which were similar in broad outline to those proposed in the Bill, so there is further scope. Having so reflected, we feel that there may be scope for considering the placing of the Ponsonby rule procedure, currently a constitutional convention, on a statutory footing to increase the clarity and enforceability of the rule that government bring such matters before and to the attention of Parliament. Any change would require wide consultation right across government and there are no guarantees that it would be supported. But we intend to undertake such consultation shortly, which I am sure the noble Lord will welcome, and will inform the House of its outcome in due course.
	The Bill makes reference to overseas territories; it would have implications for the making of prerogative Orders in Council. We believe it could have a negative impact on our relationship with overseas territories. There are differences in the way in which constitutional changes are handled in the territories. All the territories' constitutions are made or amended under statutory powers except those of Gibraltar and the British Indian Ocean territory which are made by Orders in Council under the prerogative. Those made under statutory powers are laid before Parliament but do not need approval. It would be anomalous to require approval for those made under the prerogative.
	I now turn to that aspect of the Bill which has exercised all noble Lords who have participated in the debate—the Civil Service. The Bill deals in large part with the regulation and conduct of the Civil Service. I was grateful for the comments of the noble Baroness, Lady Prashar; her description of the Civil Service as a public asset was one that we should hold dear. Her remarks advising us to avoid making the Civil Service a political football were very wise—we should avoid that at all costs. The Government are very keen to uphold the independence and integrity of the Civil Service, as I am sure were previous governments. My personal view is that we sometimes risk undermining those qualities in the currency of our debate. The Government are committed to maintaining that impartiality for the permanent Civil Service because it is an important part of the fundamental principles that underpin its operation.
	On 27 January this year, the Cabinet Secretary and the First Civil Service Commissioner launched the consultation on a new Civil Service code. A working group, consisting of Civil Service Commissioners and Permanent Secretaries was set up to consider the purpose and effectiveness of the code in autumn 2005. The noble Baroness, Lady Prashar, was the former chair of the working group. We are grateful to her for all her work, particularly on civil service recruitment, where great improvements have been made. The group strongly endorsed the need for a code, but agreed that it needed to be written in a way that would be relevant to all civil servants. The aim has been to produce a code which uses straightforward language and which will be relevant and accessible to all civil servants, whatever their jobs and wherever they work.
	Included in the code is the right for the Civil Service Commissioners to consider directly a complaint or concern from a civil servant about an issue under the code. This was one of the key issues raised in the consultation on the Civil Service Bill. For the first time, we make it clear that that forms part of the contractual relationship between a civil servant and their employer.
	The Ministerial Code and the code of conduct for special advisers place a duty on Ministers and special advisers to uphold the political impartiality of the Civil Service and not to ask civil servants to act in a way which would be inconsistent with the Civil Service code. In addition, we are doing much to strengthen existing arrangements. We publish an annual report to Parliament on special adviser numbers, costs and responsibilities, providing a transparency which did not exist before our administration. Updated codes of conduct for Ministers and special advisers were published in July 2005. We have put in place induction programmes for Ministers and special advisers to clarify roles and boundaries. They will affect the culture to which attention has been rightly been drawn in this debate. The Government have undertaken to consult the main Opposition party leaders on the appointment of the first Civil Service Commissioner and the Commissioner for Public Appointments. The Government did exactly that on the recent appointments of Janet Paraskeva, the first Civil Service Commissioner, and Janet Gaymer, the Commissioner for Public Appointments.
	Noble Lords will be aware that, in November 2004, we published a draft Civil Service Bill for consultation—I have been reminded of that many times today. We were the first government ever to do this. We are grateful to the noble Lord, Lord Lester, and the Public Administration Select Committee for their work on the draft Bill, which we found helpful in developing our proposals for consultation.
	As your Lordships know, the Government are considering the responses received during the consultation exercise. I repeat what I often say on these matters: we will make a Statement in due course. As I am sure noble Lords will appreciate, any legislation has to compete for its place alongside many other priorities. We are looking at the issues raised during the consultation, in particular at things that can be done which do not necessarily require legislation. As I have set out, we have made many changes without recourse to legislation.
	Before moving on to special advisers, I shall speak more generally about Civil Service reform. This is a priority for us because it is most important in improving the delivery of public services. After all, that is what the Civil Service is for. The Cabinet Secretary has set out a vision for a Civil Service which is inspired by four things: pride, pace, passion and professionalism. We are developing a more professional Civil Service. The Professional Skills for Government programme will deliver greater professionalism. We are creating stronger leadership in the Civil Service. In creating the National School for Government, we are supporting these areas through the development and delivery of training and development programmes, tied to the needs of a modern Civil Service. In addition, we are strengthening departmental capabilities through the work of corporate service leaders who are ensuring that departments have strong and well led services.
	My time is running out, but I could not pass up this opportunity to comment on special advisers, since that matter has occupied such a large chunk of discussion today. The noble Lord's Bill makes a number of proposals in relation to special advisers, including placing the code of conduct on a statutory footing and requiring special advisers to uphold the integrity and impartiality of the Civil Service.
	As we know, the role of special advisers is not new. It goes back more than 30 years to the Fulton report and the introduction of special advisers during Harold Wilson's time as Prime Minister. We need to keep the issue in some perspective, particularly numbers. Numbers were referred to on a number of occasions today. The noble Lord, Lord Kingsland, was tempted to put a cap on numbers. That was supported by others in the debate. However, there are only 81 special advisers in post compared to some 3,900 members of the senior Civil Service. I quote Sir Gus O'Donnell on this, when he spoke to the Public Administration Committee. He said:
	"There are a very small number at the minute. I think it is something like 80, relative to the senior Civil Service, they are swamped".
	He added, for good measure that,
	"the system we have works extremely well".
	A number of noble Lords made comments in that regard during the debate. The noble Lord, Lord Sheldon, who is a critic on these issues, said that he recognised the fact, and some years ago he was responsible in part for ensuring that special advisers were well paid for the special expertise that they bring. I welcome that endorsement of special advisers.
	It is worth reminding ourselves that special advisers must observe the highest standards of conduct—and woe betide if they do not, because we know that they get brought before the court of public opinion. I remind your Lordships' House that it was this Government who introduced the Code of Conduct for Special Advisers and Model Contract for Special Advisers, setting out in clear terms the transparency and the nature of the conditions for their employment. That transparency did not exist under previous administrations.
	The other point that I want to dwell on, because it has come up on a number of occasions, is the change made to the code of conduct. The accusation is that it was amended to increase the powers of special advisers and to change their relations with permanent civil servants. The change of the wording was simply this: from "advice" to "assistance". I did not interpret that as meaning, and I do not accept that that means, that there were additional powers given to special advisers to direct civil servants. It was a change recommended to the Government by the Public Administration Committee, to reflect in reality the way in which special advisers work. For example, one long-recognised task of special advisers is occasionally to brief the media. That cannot simply be defined as advice to Ministers, as under the previous wording. So we should be a little bit sensible here about the words that are used and perhaps not read quite so much into them, because I do not see a conspiracy here to lead special advisers into a role that we simply do not see—that of them having special executive powers and powers to direct.
	It is the case that the Civil Service Order in Council permits the employment of up to three special advisers in No. 10 with executive powers to manage and direct civil servants. Currently only one special adviser has those powers—and I offer the reassurance, as I have on many occasions, that there are no plans to appoint any other special advisers with executive powers.

Lord Sheldon: My Lords, I am grateful to the Minister, but will he take account of the recommendation in the ninth report that special advisers should be separated out as a category of government service, distinct from the Civil Service? At present there is confusion between the work of the special advisers and the work of civil servants and Ministers. That is a recommendation that needs to be seriously considered.

Lord Bassam of Brighton: My Lords, that is a recommendation to which we shall give serious consideration. It is in no one's interest that that confusion exists, because the role of special advisers and the value that they bring to any administration is immense. Their different and respective roles need to be understood.
	There are a number of other issues arising from the noble Lord's Bill which time does not permit me to dwell on. We have answered Questions on the Parliamentary Commissioner for Administration, and I do not intend to go over the matter in detail today. There is also the issue of public appointments and nationality requirements. I am happy to put our thoughts on that in correspondence to the noble Lord to clarify our position. I am over-staying my welcome at the Dispatch Box this afternoon and preventing my noble friend Lord Evans of Temple Guiting from playing his part in the proceedings.
	I set out the reasons why the Government do not lend their support to the Bill. That is not to say that there are not things in the Bill that are of merit, some of which we have already taken on board outside the realms of legislation. There have been issues that were helpfully raised during today's debate. I add my thanks to the noble Lord, Lord Lester of Herne Hill, for the way in which he introduced his Bill. As the noble Lord, Lord Maclennan, said, it is very much in a finished form and we should be grateful for that, because it is crystal clear in its intent. There have been many telling contributions. I listened particularly to those of the noble Lord, Lord Lipsey. His insistence that we ought to reflect much more on the culture that surrounds government and the issue of trust that goes with that is where this debate begins and ends, and I thought his comments on that point were very well made. As the Government spokesman responsible for this area of policy, I will continue to reflect carefully on all the comments that have been made in what was an interesting and important debate. No doubt these are issues and matters we shall return to in more forensic detail at a later date when the Bill has had some time—how much time, I do not know—for further consideration. For now, though, I shall sit down, having listened, and wanting to listen some more, to the noble Lord, Lord Lester.

Lord Foulkes of Cumnock: My Lords, I beg to move that this Bill be now read a second time.
	Perhaps I may say as a preamble that I speak as a committed devolutionist unlike some of those on the Conservative Benches but like my noble friend Lord Maclennan of Rogart. I speak as a campaigner for the Scottish Parliament for over 40 years. I was very pleased to see it ultimately established. I campaigned in both referenda in favour of a Scottish Parliament. Of course we had a positive vote even in the first referendum although the Cunningham amendment thwarted the creation of the Scottish Parliament. I speak also as someone who believes that the Scottish Parliament and the Scottish Executive are doing a good job. In the Scottish Parliament there have recently even been some speeches that appear to bring the roof down.
	Nothing about the Bill is intended in any way to put any aspect of devolution in jeopardy. Although I do not like proportional representation and never have done—in this case I may agree with some Members on the Conservative Benches—and the way in which PR invariably results in a coalition government, the Bill is not designed and will not affect the balance of the parties within the Scottish Parliament. It will have no effect on the political balance whatever, however tempting that might be. It is a simple Bill with one simple purpose only—to prevent individuals standing for both the constituency section and the list section in elections to the Scottish Parliament.
	I hope that I am not giving too much away when I try to play what I think is the trump card in all the arguments that I put forward and play that first. I believe that the Bill should get the support of the Minister and of the Government because it is precisely what the Government are currently seeking to enact for Wales—no doubt Welsh Peers who are present will go along with it for that reason—in the Government of Wales Bill which has just completed its passage through the Commons and will soon be before your Lordships' House. I am sure that the Minister will have read the very strong arguments in the debates in the other place in favour of what I propose today. I am sure that he, like all government Ministers, believes in consistency on this issue.
	I have already received criticisms from people who have read about the Bill. It has been suggested by some, including Fergus Ewing, SNP Member of the Scottish Parliament, in a radio discussion in which he and I took part that it is somehow odd, perhaps even wrong, that the Bill should be initiated in the unelected Chamber of your Lordships' House. Quite apart from the fact that I, like a number of noble Lords present, have been an elected Member for a substantial period of time, that criticism is absurd. This House is an integral part of Parliament and each of us has every right to initiate any legislation. There is no point in pretending that we do not exist. The Scottish Parliament is a devolved parliament but ultimately, decisions in relation to elections to that Parliament are decided here in Westminster.
	Other critics of the Bill argue that the Arbuthnott committee does not support what I am proposing in the Bill. That is true. However, the Arbuthnott committee report has been subjected to sustained criticism throughout Scotland, particularly from Members of Parliament, on the ground that it is doubly flawed. First, the Arbuthnott report went well beyond its remit and pontificated on issues that it was not asked to address. It did not properly answer the questions that the Secretary of State wanted resolved. Secondly, the evidence that it received does not support its conclusions, or, perhaps more correctly, the conclusions are not supported by the evidence that it received. Purely the opinions of the members of the committee came through those recommendations, not the basis of the evidence that was submitted.
	I have received further critical comment from some who point out that it was a Labour Government, of which I was part, who enacted the current legislation. No doubt someone will say that today. That is also true—forgetting the fact that I supported it out of my usual loyalty—there is no reason why we should not anyway review any part of that legislation and change it if we think that it is manifestly wrong, and that is certainly the case with this particular part of it.
	The voting system for the Scottish Parliament arose from the Scottish Constitutional Convention and was part of a deal between Labour and the Liberal Democrats. We are seeing again and again in deals between Labour and the Liberal Democrats that the Liberal Democrats always tend to take rather than give. It is a one-way street and they seem to do remarkably well out of it. Although the new voting system for the Scottish Parliament devised by the constitutional convention was clearly disadvantageous to Labour, the Government were totally honourable and stuck by the deal. However, since then we have seen other parties manipulate the system to their advantage.
	I go back to October 1998 when the late Donald Dewar said of the two votes in the new system," The first ballot gets you a Member of Parliament. The second gets you a government". That is the important difference. He went on to say:
	"In fact, the second ballot is not a second choice. It is the basis of the corrective mechanism to bring the percentage of seats gained in the Parliament into line with the percentage of votes cast for a party".
	So we in Scotland, as the Liberal Democrats constantly say and praise, have the most proportional system of election in the United Kingdom. That is not changed in my Bill. I might like to change it, but the Bill is not intended to do that.
	The problem that the Bill seeks to tackle is the anomaly whereby losers at the constituency level turn up as MSPs on the list. People who have been rejected by the electorate nevertheless get in on the list and then go on to purport to represent the constituents who have rejected them. To give one example that I know only too well of my old constituency of Carrick, Cumnock and Doon Valley, in 1999 Cathy Jamieson beat Adam Ingram by over 8,800 votes, but Ingram was elected on the SNP list and he set up a local office and purported to represent Cathy's constituents. Even worse, in 2003, Cathy Jamieson had over 7,000 votes more than my redoubtable friend Phil Gallie, and this time she had over 10,500 votes more than Adam Ingram. Yet they both turned up on the Tory and SNP lists respectively, both of them setting up local offices and both purporting to represent the constituents who had rejected them.
	I do not think that some of these statistics have been published before so that people have recognised them; this is a revelation. Out of 129 seats in the Scottish Parliament, 73 are elected to represent constituencies and 56 are elected in the eight regions, with seven MSPs in each region. Out of the 56 list MSPs, 12 did not run for constituency seats, and I have no quarrel with them. But 44 are basically losers of constituency seat elections; that is 78 per cent. That means that more than one third of all the MSPs are people who the public rejected at a constituency level. Out of those 44, 18 are nationalists; 15 are Tories; five are Trotskyite SSP; three Labour—so we are going to be affected by what I am proposing; two are Liberal Democrats; and one is Scottish Senior Citizens Unity Party. In fact, 15 out of the 18 Tory MSPs are losers; that is 83 per cent. Some 18 out of the 27 nationalist MSPs are losers, which is two-thirds.
	On average, Conservative candidates who lost at constituency level but got into Parliament by the back door gained only 23 per cent of the votes in constituencies, and in one case it was as low as 14 per cent. For SNP candidates, the average is similar at 23 per cent, but their least successful candidate only got 12 per cent of the constituency votes. The biggest constituency level losers who nevertheless got into Parliament are John Swinburne of the Scottish Senior Citizens Unity Party, who got just over 6 per cent in the constituency but got in by the back door; Frances Curran from the Trotskyite SSP—

Lord Foulkes of Cumnock: My Lords, I would argue that it would be less likely. Let me explain. I know that the noble Lord used to be a constituent of mine. I have great respect for him. I suspect that he did not vote for me. But he will know that what is happening is that Phil Gallie and Adam Ingram, who are running their offices in the constituency locally, are not just doing that to help the constituents, they are doing it because at the next election they plan to stand at the constituency level and to kick out the sitting MSP. So they are using it as a political platform. My Bill will stop them doing that. I hope I have explained the situation to the noble Lord.
	I was going to mention another loser, Carolyn Leckie, from the Trotskyite SSP. She received about 8 per cent at constituency level and again came back by the back door. So the main purpose of the Bill is to stop the anomaly which turns losers into winners. Another argument in its favour—and I hope that this will help deal with part of a point raised by the noble Lord, Lord Forsyth—is that it makes clear that list and constituency members have different roles. The constituency member has to look after his or her constituents, has to take up constituency issues, to co-operate with the MP, with councils, health boards and so on. But when list MSPs muscle in on this we get absurdity, chaos and confusion.
	At the moment—to give one example, which I know about very well—the Ayrshire and Arran Health Board feels obliged not only to deal with the five constituency MSPs but also because it covers three out of eight electoral regions, it feels obliged to bring along 21 list MSPs. That is manifest nonsense as well as being a bureaucratic nightmare. The list MSP is a party representative who should therefore have a different and wider role, which is no less important, and, indeed, it could be argued, is more important. It may be preferable, for example—and I say this to the noble Lord, Lord Forsyth, in case he still nurtures ambitions for power—for potential Ministers to seek election on party lists. But what should be unacceptable is what Alex Salmond is planning. He is planning to stand for the Gordon constituency, but, knowing his chances of getting elected, as I am sure the noble Lord, Lord Maclennan of Rogart, will agree, are very slim indeed, he is also planning to be on top of the SNP list in the north-east of Scotland, and, incidentally he is still planning to represent Banff and Buchan in the House of Commons—a modern day Poo Bah indeed.
	In conclusion, the present system is a chancers' charter. This Bill forces candidates to decide what role they want to play. It prevents losers from being turned into winners without the approval of the electorate. It gives the power to the people to decide who should be their local MSP as well as which party or parties should form the Government. It is common sense. I cannot envisage that any member of this House would disagree. I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord Foulkes of Cumnock.)

Lord Roberts of Llandudno: My Lords, as a Welshman I venture into very dangerous territory. In doing so, we know that the Government of Wales Bill will be before us before long. The noble Lord, in proposing his Bill today, said that part of the Government's recommendation is the end of dual candidatures. I am delighted that the opposition of the noble Lord, Lord Foulkes, to proportional representation is at least rejected by the Government.
	There was a debate in Westminster Hall on 15 February. The Scotland Office Minister, David Cairns, said of the Arbuthnott report, Putting Citizens First, that:
	"An element of proportional representation is an essential feature".—[Official Report, Commons, 15/2/06; col. 505WH.]
	So I am delighted that the Government see that the present system is totally unacceptable. In Wales the Richard commission—I am delighted to see the noble Lord present this afternoon—was in favour of proportionality; the additional member, the top up of a list, or, going further than that, ideally, the single transferable vote. If you use the single transferable vote in a multi-member constituency, every member is elected with the same authority. There are no first-class or second-class members. There are no winners or losers there. When you talk of winners and losers, you are talking only about the first-past-the-post system, not any other system.

Lord Foulkes of Cumnock: My Lords, I am sorry to intervene. Surely, in a single transferable vote system, although three members may be elected equally— I agree that they are of equal status—to represent three seats, under that system there will be candidates who will not get elected. They will be the losers.

Lord Roberts of Llandudno: Yes, my Lords, but not in the same way as we have under the first-past-the-post system. Why is nearly everyone now in favour of PR? Let us take Scotland's general election results in 2001. Labour polled 43.9 per cent of the votes but won 55 of the 72 seats. Surely even the noble Lord, who is supposedly against PR, would say that that is wrong. Something is fundamentally wrong when a party with less than 50 per cent—only 43 per cent—of the vote wins 55 of the 72 seats. There was a similar distortion in Wales, where Labour won 48.6 per cent of the vote, but 34 of the 40 seats. The time is here when PR in one form or another must be accepted by all sides of the House.
	The additional vote system was introduced in Scotland, Wales and the London Assembly to ensure that the people who voted had representation in some proportion to their electoral strength. In both Wales and Scotland, regional list members were returned to make amends for that distortion. I am delighted that the noble Lord admits that Labour also put candidates on the regional list as well as in the constituencies. I know that in North Wales, nearly every Labour constituency candidate was also on the regional list. This is an attack against what happened when this whole electoral system was agreed and an attempt to revisit the devolution settlement.
	Candidates are nominated for the list and for constituencies by all parties. Why were they nominated for both the list and a constituency? Was it not because the parties, in arranging their list members, wanted to ensure that those whom they regarded as being best able effectively to represent the people of Scotland or Wales at least had a decent chance of winning a place in the Parliament or Assembly? After all, it was the parties who chose them. I want an open list where the electors choose them; but, at present, it is a closed list and the party decides.
	Neither the Richards commission in Wales nor the Arbuthnott commission in Scotland had any difficulty with dual candidatures. Nor has the Electoral Commission. For the sake of the Parliament, for the sake of the Assembly but, most of all, for the sake of good representation and effective government in Scotland and Wales, it is essential that we have the strongest possible representation. The unease in Wales arose because of the result, which may even have reached the ears of people in Scotland, in Clwyd, West. Alun Pugh, the Labour candidate won the seat under first past the post, but the three main opposition candidates were on the regional list. What is at all wrong with that? If the party gets sufficient support at a regional level, what is wrong with those candidates becoming regional list members?
	I understand that the noble Lord sees it as reprehensible when he accuses regional list members of setting up constituency offices. A member who wants to meet his or her people needs to be established somewhere in that region. Regional list members cannot be in outer space or on another planet, so they have to be in their region or they cannot represent effectively. Whether or not they were a defeated constituency candidate, they would still set up an office in the region if they were elected from a regional list. They could also stand at the next election in the constituency in which they have an office. Preventing them now cannot stop them being a candidate in a constituency, unless you are going to say, "Sorry, only the constituency member is allowed to have a campaigning office in such and such a place". Perhaps that is what you want to do.
	So what about all other organisations that campaign, such as Help the Aged and other humanitarian organisations? Are you going to say to them, "You're not to have an office"? That would be a total restriction on the rights of people to work together for the benefit of the whole community. Are we now to legislate to say, "No offices. Only the political office"? I would say that this Bill, for that reason alone, needs to be defeated. This Parliament must be representative of all organisations and open and inclusive. This Bill excludes. It is negative, and it will alienate and limit. So I suggest that the noble Lord withdraws the Bill at this stage in the proceedings.

Lord Evans of Temple Guiting: My Lords, I commend the alacrity and enthusiasm of my noble friend Lord Foulkes of Cumnock in his determination to debate matters arising from the Arbuthnott commission report. This is the second time I have paid him that compliment in a very short period.
	This is the fifth parliamentary occasion so far since the report was published on 19 January that a debate has taken place on some aspect of it. The noble Lord, Lord Strathclyde, asks when we will have a full debate on the report. He is a senior member of the usual channels—I am not, so I pass the question back to him.
	The Government do not block a private Peer's measure on Second Reading but we must make our position clear on such occasions. As the Secretary of State for Scotland has noted on more than one occasion, the Government have no plans to reopen the Scotland Act. That would apply either for the purposes of my noble friend's Bill or for any other immediate purpose. We do not think it right, therefore, that this Bill, focusing as it does on a single matter linked to the Arbuthnott report, should be taken forward.
	As we have heard, the Bill aims to prevent candidates in elections to the Scottish Parliament standing as constituency members and as additional members on the regional list system. This would reverse the position in the Scotland Act. It is undeniable that the dual candidacy provisions have determined to some extent the views of political parties in Scotland about how to field candidates. I can therefore understand, up to a point, why the noble Lord, Lord Foulkes, wished to focus on this issue.
	However, perhaps I may set the Government's position in a wider context. The Arbuthnott Commission on Boundary Differences and Voting Systems reported on 19 January. Its report reflects some 18 months of deliberations, including submissions of evidence from a range of bodies, meetings held across Scotland and a structured programme of discussion and exchange with political parties, electoral administrators and local authorities, as well as Members of this House.
	Where do the Government stand on the findings and proposals in the Arbuthnott Report? First, as the Secretary of State for Scotland said on the day of publication, we believe that the report contains a number of interesting recommendations, which will be considered carefully and responded to in due course. The Secretary of State added that the report provided an opportunity for full consideration and debate on the proposals. Parliament alone is certainly seizing that opportunity. I am sure that we will have another opportunity shortly with the help of the noble Lord, Lord Strathclyde.
	The Secretary of State went on to say that should the Government decide to take forward any legislative changes arising from Arbuthnott, these could not be made before the Holyrood elections in 2007. That is the Government's position on the timing of, and context for, taking action related to the commission's report.
	The report contained 24 recommendations, some of which are for government to consider, but others come within the ambit of the Scottish Executive or Scottish Parliament and the Electoral Commission. As the Government have reached no view on the recommendations in the Arbuthnott report, I am unable to provide today a critique of the merits or otherwise of the specific measures which relate to changes to the electoral system. The Arbuthnott commission set out the reasons for reaching its view and I need not repeat them here. Your Lordships have already heard comments both supporting and dismissing the report's arguments on this point. Much of the debate today has borne out the basic point that I made at the start of my remarks that there must be few recommendations in Arbuthnott that would command universal support.
	This is not necessarily a judgment on the soundness or otherwise of their substance. It simply reflects the fact that, when it comes to constituency boundaries and electoral systems, parliamentarians in this House and the other place, as well as the wider voting community, tend to have a broad range of views. For this important reason—I am delighted that I am amusing my noble friend Lord Rooker—governments have traditionally sought to build on any consensus that may emerge when constructing electoral systems. At the same time, government cannot shy away from taking difficult policy decisions where consensus may not exist.
	In the course of his speech, the noble Lord, Lord Foulkes, claimed that the Arbuthnott commission had misinterpreted its remit. He did not go on to define exactly what he meant. However, I am aware that some commentators have argued that the commission gave an excessive emphasis to "respecting the principles of the devolution settlement", which formed part of its remit. It has been argued that the commission construed this as a barrier to considering voting systems beyond those with elements of proportional representation.
	The Government do not accept that the report is flawed because of that. We accept that the essential nature of the devolution settlement means that proportional elements are part of the picture. However, there are ways of delivering an element of proportionality in the voting system other than the recommendations that the commission made. Nevertheless, I recognise that there is probably room for debate and discussion on this matter as we consider the report's findings and analysis.
	I now reach that part of my short speech to which all noble Lords are looking forward: the Government of Wales Bill. The noble Lord, Lord Foulkes, described this as his trump card. I was immensely flattered that the noble Lord, Lord Forsyth, said he was looking forward to what I said on this matter. It was a matter that the noble Lords, Lord Strathclyde and Lord Roberts, and practically all noble Lords who have contributed to the debate have mentioned.
	The question is whether the provision will require candidates for the Welsh Assembly to stand in either constituency seats or for regional lists. Everybody is claiming that this ought to be the basis of the electoral system in Scotland. The Government do not accept the automatic assumption that electoral systems for the different devolved administrations need to be wholly identical. To the extent that such systems are part of the devolution settlement, there is already what the constitutional experts would call "asymmetry" between the various settlements. It is perfectly reasonable to argue, therefore, that there may well be variations in the electoral systems tailored to suit the particular requirements of the different devolved administrations. Indeed, we see a pertinent example in the introduction of a new voting system for local government in Scotland, which would not necessarily attract support for replication in the rest of the country. Devolution means that differences emerge that stand on their own merits.
	This has been a useful, relaxed, amusing and interesting exchange of views on matters connected with elections to the Scottish Parliament. I have no doubt that there will continue to be further consideration and debate on Arbuthnott, and this can only be a good thing. However, on the specific issue of banning dual candidacy at elections for the Scottish Parliament, there is no prospect of government support for reopening the Scotland Act for this or any other purpose at present. I would therefore have to express strong reservations about the benefits of the Bill of the noble Lord, Lord Foulkes, proceeding further in this House.

Baroness Harris of Richmond: My Lords, I thank the noble Lord, Lord Laird, for introducing the Bill, as it is always useful to revisit these issues. We on these Benches have spoken about our concern at the 50:50 recruitment policy, and we are particularly concerned at the effect that the policy has had on ethnic minority candidates for the police.
	Anecdotally, in 2003 my honourable friend the Member for Montgomeryshire visited various community groups from a number of ethnic minority communities in Northern Ireland. Members of the Indian community told him how the 50:50 quotas had discouraged people from ethnic minority communities from applying to the police. Because of the way in which the legislation is worded, candidates from ethnic minorities are considered in the non-Catholic pool of applicants, which is still larger in number than the Catholic pool. Some from ethnic minority backgrounds are reluctant to report hate crimes that are carried out against them as they believe, rightly or wrongly, that the police officer may not fully understand or empathise with their situation. They would feel more comfortable talking to a police officer from a similar background to themselves. I am therefore pleased that the noble Lord, Lord Laird, has tried to address that issue in Clause 2. It is something that the Government must turn their minds to. It is important that in trying to help one group the Government do not disadvantage other minority groups.
	Having said that, it is important to recognise that this recruitment policy has been effective in increasing not just the number of recruits from the Roman Catholic community, but the number of applicants. Prior to the recommendation from the Patten report being implemented, the highest percentage of applicants from Roman Catholics stood at 22 per cent. We now routinely see 36 per cent of applications coming from that part of the community. However, I am a little concerned that the figures seems to have stabilised and that we are not seeing further growth year on year, especially since across Northern Ireland the percentage of Catholics from the target age group is 44 per cent. Does the Minister agree with me that if Sinn Fein joined the policing board, and actively engaged and supported policing structures in Northern Ireland, this figure could rise further?
	We also have concerns about putting all other applicants together. Will the Minister consider looking at how we can ensure that those we need to recruit as a matter of urgency are highlighted separately as a percentage, thus enabling the clear concerns of the minority ethnic communities to be addressed?
	There is clearly some work still to be done. Therefore, I think the time is not quite right to repeal the recruitment measures we have talked about today. Although this is far from the ideal solution, I believe that the political situation in Northern Ireland is currently far too fluid to make such a change.

Lord Rogan: My Lords, I offer my vigorous support to a long-time friend and colleague, the noble Lord, Lord Laird, and fully endorse the Police (Northern Ireland) Bill, which is receiving its Second Reading. In particular, I commend this Bill for seeking to eradicate the inherently discriminatory practice of the 50:50 recruitment requirement for the Police Service of Northern Ireland.
	Northern Ireland had long been concerned with and, in more recent times, has embraced human rights. Years of conflict necessitated a strong discourse on human rights, which has subsequently found a home in the wide-ranging equality legislation which, indeed, is unique to Northern Ireland.
	However, it is of pressing and ongoing concern that we have the current recruitment requirement, which imposes a statutory quota of 50 per cent Roman Catholic and 50 per cent non-Roman Catholic on the Police Service of Northern Ireland. The initial difficulty with this quota is the effect of the two classifications, which bundles all non-Roman Catholic applicants into the one grouping and thus creates a "privileged" position for Roman Catholic applicants. This "privileged" position is often defined as positive discrimination.
	Northern Ireland stands alone as the only country ever to have used discriminatory quotas in employment. This method of recruitment does not exist within the realms of either the United States of America or European jurisprudence. It must be emphasised that if Northern Ireland is to progress and move beyond the confines of its complex history, it must take its places beside its neighbours with a mutual respect for equality of opportunity
	This presently is not the case. Northern Ireland receives special treatment through the use of discriminatory employment practices in the Police Service of Northern Ireland. Quotas do not imbue our present, future or past with dignity, but seek to undermine existing human rights principles with an unfair practice which I feel patronises the effective progress that has been achieved through targets and greater promotion of public awareness of a career for young people in the Police Service of Northern Ireland.
	This has been more than illustrated by the surge in numbers of women joining the Police Service of Northern Ireland—a feat achieved through greater awareness and a shift in the culture of the Police Service of Northern Ireland. This system is fair and progressive and should be implemented in relation to recruitment of individuals from all sectors of Northern Ireland society, including individuals from ethnic minorities—such is the increasingly culturally diverse identity of Northern Ireland. We must move away from the ineffective and stringent pull of quotas, which do not reflect the contours of Northern Ireland, or indeed, human rights doctrines.
	In terms of financial efficacy, I have been reliably informed that it has cost in excess of £80 million to run the 50:50 recruitment requirement scheme in Northern Ireland. Will the Minister confirm that this figure is correct?
	The quota system also suffers from the effects of Sinn Fein/IRA refusing to endorse the Police Service of Northern Ireland. A more effective means of nurturing and maintaining cross-community support could be achieved through greater public awareness of the changes that have been brought about by the increased numbers of women in the PSNI and the shifts in attitude that this has brought about.
	People in Northern Ireland, irrespective of their community background, do not welcome the patronising effects of the current system. We certainly do not want a special legal position that manipulates our legal system by opting out of universal human rights standards in relation to employment. We want the dignity of being exactly the same as every other citizen of the European Union and every other signatory state of the European Convention on Human Rights.
	As I have mentioned, Northern Ireland has long been concerned with human rights, and this has duly informed the equality of opportunity that exists in the Northern Ireland job market today. It must be stressed that equality of opportunity irrespective of religious background has been achieved without the need for quotas, but with properly implemented and wide-ranging equality and employment legislation, underpinned with international human rights principles, notably from the European Court of Human Rights and the European Court of Justice.
	I recognise that I am going over my time, but I will take one moment to finish. A further point to note is the recent development in the recruitment policies and practices of the Garda S-ochána in relation to Northern Ireland, which is bound to have a destabilising effect on the recruitment requirements in Northern Ireland. As the Minister may well be aware, there was a large recruitment fair in Belfast yesterday, and the Garda S-ochána had a stall there for the first time in its history.

Lord Glentoran: My Lords, I thank the noble Lord, Lord Laird, for bringing this Northern Ireland Bill to your Lordships' House. It is an excellent sign of the times that a member of the Unionist Party has thought to bring a Private Member's Bill concerning Northern Ireland to your Lordships' House. We have some sympathy for the case made by the noble Lord. From the outset, we have had difficulty with the 50:50 recruitment provisions contained in the Police (Northern Ireland) Act 2000. They are deliberately and clearly discriminatory—a point that has been made by everyone who has spoken today. They have caused considerable anger among the broader unionist community—a point that politicians today tend to overlook, but which is making life increasingly difficult for unionist politicians in reaching any form of agreement with republicans.
	Let me be clear on one thing. We wholeheartedly share the objective of increasing the proportion of police officers who are Roman Catholic, but we absolutely reject any inference that the former Royal Ulster Constabulary was in any way anti-Catholic. Many Roman Catholic officers served in the RUC with great bravery and distinction. We all know that the greatest impediment to recruitment of Catholic officers was intimidation or the threat of intimidation by republican paramilitaries—in particular, the IRA. Even today, the IRA refuses to allow its followers to accept the judicial processes of the United Kingdom, and if it can prevent them joining the PSNI, it does so.
	That is something that the Patten report of 2000 unaccountably played down when discussing the so-called turn-off factors against Roman Catholics joining the police. Although that threat has diminished, it has regrettably not totally gone away. Dissident republicans have continued day by day to target Roman Catholic recruits and members of the district policing partnerships. The mainstream republican movement, as I have said, still refuses to endorse the police and the criminal justice system. I have no doubt that the 50:50 provisions have helped to achieve a significant increase in the number of Catholics in the PSNI from about 8 per cent in 2001 to almost 20 per cent today. Incidentally, however, we might shortly reach the same proportion of Roman Catholics in the PSNI that made up the ranks of the Royal Ulster Constabulary in the early 1920s. I have no doubt that the proportion will increase further if the laws continue to be in force, but the question has never been about end—rather, it has been about the means and whether there is not a better way to achieve this objective.
	The noble Lord, Lord Laird, pointed to a number of the problems with the current 50:50 system, in particular the resentment in the Protestant community. It is discriminatory, and it has led to many perfectly well qualified Protestants having their applications to join the police turned down in favour of less well qualified Roman Catholics. I have had a good deal of anecdotal evidence of this myself in Northern Ireland, and I would be grateful if the Minister could tell us whether there are official figures for the number of Protestants disadvantaged by the system in this way. The Opposition also find it unforgivable that people pass all the tests and reach the pool of qualified applicants, only to fall foul of the 50:50 quota system and—this is my point—then having to go all the way back to square one should they wish to continue with their ambition to serve in the police.
	Surely, as we have argued before, there should be some kind of reserve list for those who are suitably qualified but have missed out on final selection because of the 50:50 rule. Could the Minister give us one good reason why these people could not simply be fast-tracked back into the pool? As a matter of interest, how much is all this extra work and bureaucracy costing? Then there is the crudity, which noble Lords and the noble Baroness, Lady Harris of Richmond, have already referred to this afternoon, of dividing applicants into Roman Catholic and non-Roman Catholic. As a result, Taoists, Buddhists, Sikhs, Muslims and many members of other religions—Northern Ireland, as the Minister well knows, has a growing Asian community—are placed at a serious disadvantage. Surely this is plainly absurd.
	At the time of the 2000 Act, we supported amendments that would have placed on the chief constable a statutory duty to promote measures designed to achieve a police service that was more representative of the society from which it is drawn and which it serves. We continue to believe that this is a fairer way of increasing Catholic representation in the PSNI. The 50:50 provisions have been in place for some years now. They are described in Part 6 of the 2000 Act as temporary provisions. Those familiar with Northern Ireland will know that things that are described in such a way almost always become part of the furniture and assume an air of permanence.
	I would therefore be grateful to know for how long the Minister expects these wholly exceptional and unpalatable measures to be in force. Is it the Government's intention to renew them for another three years once the current provisions lapse? Is it not time to begin to consider another way of achieving the wholly laudable aim of increasing the numbers of Roman Catholics in the PSNI, and having a little original thinking from the Government?
	I finish by returning to the point about intimidation that I touched on earlier. No one doubts that much has changed in policing in Northern Ireland in the past six years. Yet there is unfinished business. In our view, policing is central to any agreement that restores the devolved institutions to Stormont.
	Put bluntly, there can be no place in government for those who do not just refuse to take up their seats on the Policing Board or the DPPs, but refuse point blank to support the police force and judicial processes. We need to see an ideological shift from Sinn Fein, so that it recommends policing as a worthwhile career for people who live in what would be seen as mainly republican communities. Ultimately, that would surely be the best way of guaranteeing Roman Catholic, republican, nationalist or a wide range of minority participation in the police, rather than the blatantly discriminatory and heavy-handed measures that we are discussing today.

Lord Rooker: My Lords, I am grateful to the noble Lord, Lord Laird, for introducing the Bill, as he has every right to do, because it gives us an opportunity to debate one of the most important services in the community, the police. Indeed, the subject of the temporary provisions of 50:50 recruitment—I emphasise "temporary"—and the resultant change in the composition of the police service that has occurred in the past few years is one of the most significant reasons why public confidence in policing is increasing across most of the community.
	From the history of recent years, I suspect that more than any other matter policing has been the subject of debate, and certainly of disagreement and division. It is a sign of how much we have changed recently that we have published a consultation paper that looks forward to returning policing to a locally elected Assembly, to be accountable to the people of Northern Ireland. Later this Session, not too far away, we will have legislation in this House to that effect. Policing in Northern Ireland has undergone significant change. That change has been possible only through the courage and dedication of the men and women who have served the community as police officers over the years. The serious disorder witnessed during last summer and September shows that it is too early to declare that Northern Ireland has become a normal society for policing, but we very much hope that policing is moving into an era which can see police officers patrol normally and help the community without fear of attack or abuse.
	The support of the entire community—it has been implied through many speeches today—for police officers serving that community will be important to achieve a normal society. Everyone has a part to play—the community, elected representatives and the Government. Taking the points that the noble Lord, Lord Glentoran, made, I shall repeat what I have said in this place before. If you do not support the police, it means that you support the criminals—the muggers, the rapists, the burglars, the beaters-up of old women and older people, the crooks, the spivs and the racketeers. It means that you support those who try to rip people off and make their lives a misery. There is no grey area here; it is black and white. That is the situation in a normal civic society; it is the norm in the rest of the UK and there is no reason why it should not apply to Northern Ireland. If you are not playing a part, you are on the side of those who are there to cause disruption.
	Much has been achieved in policing since the Belfast agreement and the subsequent Patten report that heralded a new beginning for policing in Northern Ireland. The list is impressive, although one would not think so from some of the negative speeches and twisted statistics that we heard today. The new Policing Board came into force on 4 November 2001. The board, which has been formed with cross-community participation, has broad powers to hold the police to account, and has to date established itself as a powerful and credible organisation committed to ensuring the effective policing of the whole of Northern Ireland. There were predictions of doom from many quarters. The board has overcome and challenged those predictions, and dealt with many difficult issues relating to policing in Northern Ireland. For example, there were those who claimed the board could never agree on a new badge but, on the recommendation of the board, a new badge and uniform were introduced to the Police Service of Northern Ireland on 5 April 2002.
	The board appointed a Chief Constable, and Sir Hugh Orde has shown his determination to strengthen and build upon this "new beginning" to policing. The board has also published the code of ethics and issued annual policing plans, the most recent of which will be launched next week. Human rights lie at the heart of policing with a new oath, the appointment of a human rights lawyer to advise the PSNI and the expansion of human rights training for all police officers and civilian staff. In all these areas, the board has demonstrated a capacity for reaching decisions on a mature, sensitive and partnership basis. I want to put on record today the appreciation of the Government and, indeed, this House for the contribution that the board members have made to the new beginning in policing, particularly as we approach the reconstitution of a new board in April.
	The establishment of district policing partnerships has provided an important step in helping local communities to gain a greater sense of ownership in relation to their policing arrangements. The ongoing reports of the oversight commissioner, Al Hutchinson, who has continued to oversee the process of change, have provided further assurance that the board and the Police Service of Northern Ireland have made vast progress. He confirmed last June that over 65 per cent of the 175 Patten recommendations have been fully implemented and that the remaining recommendations will be achieved in time. Although the establishment of her office pre-dates the Patten report, the work of the independent police ombudsman has been an important step in helping to increase the transparency of the police service.
	The structures we now have in place—the policing board, the district policing partnerships and the police ombudsman—are envied throughout the world. When people look at what is happening in Northern Ireland they can see positive progress. These structures provide a solid basis for accountability and give the Northern Ireland community the opportunity to have a real say in local policing. Policing with the community is what we all want; it is part of a normal civil society. We want policing that is responsible to local community priorities, that deals courteously and fairly with every member of the public and which values the contribution of the community to securing a just and safe society. We believe that every person and every elected representative in Northern Ireland should be able to support that and work towards that goal.
	That is what we are achieving, faster in some areas than in others. Public confidence in policing is increasing across most of the community and crime figures last year were at their lowest for six years. Although the number of reported crimes has increased slightly this year, we believe that reflects a greater willingness within local communities to work alongside the police in the reporting and detection of crime.
	As I have said, the Government firmly believe that the temporary provision of 50:50 recruitment is one of the most significant reasons why public confidence in policing is increasing across most of the community. If I did not know before I came here today, I know now that some noble Lords harbour principled misgivings about this measure, but when the Independent Commission on Policing in Northern Ireland, led by the noble Lord, Lord Patten, made its report, it reflected the agreed principle of the Belfast agreement that the police service should be representative of the society that it polices. The Patten report pointed out in paragraph 14.2 that,
	"real community policing is impossible if the composition of the police service bears little relationship to the composition of the community as a whole".
	It continued:
	"If all communities see the police as their police, there will be a better, cooperative partnership between community and police, and therefore more effective policing".
	The report highlighted the imbalance between the number of Catholics and Protestants as "the most striking problem"—not the only problem, but the most striking problem—in the composition of the police, above issues of gender and ethnic minority representation, which the commission acknowledged were important, and I acknowledge to those noble Lords on all sides of the House who spoke to today that they are still important points.
	The report recommended the recruitment of Protestants and Catholics on an equal basis as an exceptional measure to try to provide a more representative police service within a reasonable timeframe. The Royal Ulster Constabulary was a fine police service with many attributes, to which I am proud to pay tribute on behalf of the Government and the House. But, despite much effort, it was not representative of the community. I am not going to discuss what the composition was, because I am not briefed and do not think it is relevant. It was not always counted as it is today—I refer to the 1920s, 1930s, 1940s, 1950s and 1960s. I realise that there were Catholic officers serving with distinction; there is no question about that. But the fact is that when the noble Lord, Lord Patten, looked at it, only 8.3 per cent of regular officers were from the Catholic community.
	I recognise that the temporary provisions remain an anathema to the noble Lord, Lord Laird, and some of his colleagues who, as we have heard today, are keen to emphasise and, regrettably at times, exaggerate the number of non-Catholics who have been denied employment as a result. It is not something I deal with as a Northern Ireland Minister on a daily basis—it the responsibility of one of my colleagues—but I have nevertheless seen the outlines and press reports with clearly exaggerated figures of people who have not gained admission to the police service. It is true, and I have to be clear on this. There have indeed been a number of candidates who have not been appointed due to the 50:50 provisions. But the vast majority of unsuccessful applicants are not appointed simply because demand to join the PSNI is astronomically high—it is nothing to do with the 50:50 provisions.
	Part of the reason demand is so high is the extra confidence people have that it is worth while to serve one's fellow citizens in the community. People are coming forward in greater numbers than ever before. In the first eight competitions there were over 28,000 applications from non-Catholics—I accept that this covers everybody who is non-Catholic; they are lumped together, as the noble Baroness said. Of those, only 541 have been rejected directly as a result of these temporary provisions. In other words, less than 2 per cent of all non-Catholic applicants will have been rejected as a direct result of the 50:50 provisions. The figures that I have seen in newspaper reports—and sometimes bandied about this House—suggest that there are hundreds or thousands of people suffering discrimination because of the 50:50 provisions but the vast majority figures in percentage terms are frankly not true. That must be said to the people of Northern Ireland. I call upon the editors and journalists to challenge the politicians who give them these figures on their source. The figures are clear: 541 of 28,000 applications from non-Catholics were rejected due to the 50:50 provisions. The rest did not gain entry to the police service for other reasons.
	The 28,000 figure, of course, refers to the non-Catholics. There have been 50,000 applications from across the whole community since these provisions were introduced; 50,000 people queued up to join the Police Service of Northern Ireland because of the culture change. I am not claiming that the 50:50 provisions have caused that, but people can see that it is worth while as part of that and other changes in Northern Ireland. Part of the reason—it may be a side effect—is the increase in the number of females. It had not been targeted in that way, but they have realised that there is an opening for a wider section of people.
	In the eighth campaign for recruitment, 1,100 of these candidates successfully passed all stages of the process, but there were only 220 appointments. On that basis, it would be 110 each for Catholics and non-Catholics. For the vast majority of those who did not make it, that has got nothing to do with the 50:50 provisions. The reality is that there were far too many applications for the number of vacancies. That is why there are massive numbers of qualified candidates of both Catholic and non-Catholic backgrounds who were not successful. In other words, there is a limit on recruitment. It is not that any qualified applicant can join. That is not the case. There is a limit on numbers. But it is a reason to be proud of the confidence shown in the structures.
	The Oversight Commissioner has rightly acknowledged that the recruitment campaign has been a success, providing the Police Service of Northern Ireland with the opportunity to select only the most highly qualified recruits, which is an enviable position for any police organisation in today's competitive labour market. We firmly believe that these temporary measures are justified in order to correct an acute historical imbalance in the composition of the police in Northern Ireland. But I assure your Lordships' House of one thing—they will not stay in place a day longer than is necessary.
	The government policy enunciated in the past is firmly committed to achieving a progressive increase in the Catholic representation in the police service. Our stated aim is to increase Catholic representation by 30 per cent by 2010–11. Obviously, there is a review on a three-year basis. We are well on course to achieve that increase. In less than five years, under the 50:50 temporary provisions, Catholic composition among regular officers has risen from 8.3 per cent to 19.14 per cent. In the same time, female composition has risen from 13 per cent to more than 20 per cent. Your Lordships are aware that these temporary exceptional measures are reviewed triennially and will expire unless specifically renewed by an order. The current order allows for their continuation until 30 March 2007.
	I will turn to the Bill in a moment. But, whatever the outcome, and whether or not the House is able to debate the Northern Ireland (Miscellaneous Provisions) Bill, which will start its passage in the other place next week, next February or March both Houses will be able to debate in greater detail the provision of the 50:50 temporary arrangement, because it comes up for renewal.
	In the short time available, I will answer some of the detailed points. The noble Lord, Lord Glentoran, raised rollover and people who qualify, but do not get in, staying in the pool. The Police Service of Northern Ireland, together with the Northern Ireland Office, looked carefully at that issue and consulted the Equality Commission. At that time, it was concluded that it was not in the interest of applications or the police. Rollover would result in an ever-increasing surplus of unsuccessful candidates in the pool—one can see how the numbers would grow from the figures that I have given. They would have little or no prospect of appointment, whereas evidence suggests that candidates who repeat the recruitment process generally improve their merit score and, therefore, their chances of selection. But their chances of selection, however good their score, are always low whether they are Catholic or non-Catholic because of the vast numbers applying for a small number of positions. Another reason is that candidates would also have to redo the medicals and vetting elements periodically as their situation might change. There would not be significant cost benefits for the Police Service of Northern Ireland.
	The noble Lord, Lord Rogan, asked about costs. I do not recognise his £80 million figure. In due course, if he can say where he got that from, I will do my best to answer him. In 2002–05, costs were in the region of £13 million, with an average of £10,000 per trainee. That is a three-year figure, but it also applies to the single year figure that I have in my other notes. Those figures are nowhere near the £80 million figure.
	I do not deny that these situations are expensive, but, on average, the Police Service of Northern Ireland receives 13,000 applications a year for only 440 trainee constable posts; that is, 220 appointments times two. With that level of applications per year, whatever the system, there will be massive numbers of qualified, good people who want to serve their community, but who cannot. It has nothing to do with the 50:50 arrangement.
	The noble Lord, Lord Laird, mentioned a freedom of information request. We will follow that up, but my officials are not aware of that at present.

Lord Rooker: My Lords, I cannot do that today, but when either I or whoever else on behalf of the Government address the renewal of the order, I can assure the noble Baroness that I will come to the House armed with the necessary statistics. Indeed, if we can we shall make them available before the debate. That makes sense because, as the noble Lord, Lord Glentoran, said, the community in Northern Ireland is changing. Enormous numbers of people from eastern Europe have arrived; there is a substantial Chinese community and others. We want a police service that represents as widely as possible the society it serves. The Patten report highlighted that the overwhelming issue was one of Catholic and non-Catholic representation, but the other issues of gender and ethnicity are also important.
	The noble Lord, Lord Laird, has brought forward a Private Member's Bill. It is not a government Bill and therefore it is not my job to respond to its detailed minutiae, it is only to say where the Government stand. We have considered the Bill carefully, but we are against it. Nevertheless, this House does not vote on the Second Reading of Private Member's Bills. This is a major policy area, but it is clear from our analysis that if we were to abandon the 50:50 policy, we would not achieve the Government's aim of increasing Catholic participation to 30 per cent by 2010–11. Indeed, if the policy were to be abandoned now, our projections indicate that we would be likely to see a Catholic composition of less than 22 per cent.
	Bearing in mind the changing culture, greater stability and the wider acceptance of the police in Northern Ireland, it is important to ensure that people do not get the wrong idea. The noble Lord, Lord Laird, is absolutely entitled to bring forward his Bill, and I would fight to the end to ensure that Back Benchers—I will be one myself again one day—have the right to promote legislation. But I have to say to the people of Northern Ireland that this Bill will not become an Act. I want the 50,000, the people who have been recruited, as well as the people who have not been successful in being recruited—who are in the pool and awaiting the coming change—to understand the position. Whatever happens to the noble Lord's Bill as it goes through all its stages in this House, it will not become an Act of Parliament, certainly in this Session. That is because it will not get through the House of Commons. There is a simple reason for that: it is a Private Member's Bill. All Private Members' days in the House of Commons have been allocated and balloted Bills take priority. I have checked the figures. Every single available Private Member's day in the Commons is stacked with Bills from Members of the Commons. This one would come at the end and will have no time allocated to it. Therefore the Government will object to it. So there is no prospect of this Bill becoming law. I do not want any scare stories run in the Northern Ireland press that because this Bill had a Second Reading today, it will become an Act and the 50:50 policy will be abandoned. It will not, because this Bill will not become an Act of Parliament during this Session. It cannot get through the other House of Parliament. I have to make that absolutely clear.
	Notwithstanding that, it is right that the issue is debated. Whatever happens on the miscellaneous provisions Bill, we will be able to debate the issue in rather more detail when we come to renew the order next year. Bearing that in mind, while I cannot recommend that the House supports the Bill, of course it does not object to the Second Reading of Private Member's Bills.

Lord Laird: My Lords, I am most grateful to noble Lords and the noble Baroness for taking part in the debate. I shall not detain the House for much longer at this time on a Friday afternoon. I want to say just that I am aware of the keen interest taken by the noble Baroness, Lady Harris of Richmond. She has always been a very good friend of Northern Ireland, and she is particularly interested in policing matters both on the mainland and in Northern Ireland. Her point about ethnic groups was well made and I much appreciate it. But a point she made comes through very clearly when taken with the Minister's remarks, many of which I did not quite fully understand. She referred to the use of the figures for women. Without a 50:50 system of discrimination, according to the Minister's figures, the figures for female members of the Police Service have gone up to more than 20 per cent. Yet when it comes to 50:50 recruitment and discrimination on religious grounds, the number of Roman Catholics has increased to only 19 per cent. Doesn't that put that argument to bed? Isn't that QED time? Are we not talking here about comparing two different types of recruitment? One is a positive system of recruitment, the other is discriminatory; one is shown to have worked better than the other, yet the Government are determined to stick to the one which discriminates against people on the grounds of religion.
	I did not fully understand a lot of what the Minister said; I think some of it may not have been terribly relevant to the Bill. I did not fully understand his figures, but I endorse his point about more clarification. Let us get more of this information into the public domain. When we ask for information about how the recruitment is carried out and about the merit pools, the various numbers of people and the common marking system in the merit pools, we do not get it. Obtaining that information and placing it in the public domain may help people.
	I did not fully understand the noble Lord's remarks about the number of people who have failed to enter the police force on the grounds of religion. I think the figure he gave was 551—let us say it is. That is 551 people in Northern Ireland who have been discriminated against on the grounds of their religion.